On September 27, 2011 at about 9 a.m., Alfonso Rojas was driving along Roosevelt Avenue in Queens on his way to to work when a piece of  metal flew off the elevated structure of the No. 7 train above. It penetrated through the car’s windshield and struck Mr. Rojas’s right arm causing extensive damage.

The defendant transit authorities conceded liability for the accident and in January 2016 the natter proceeded to a trial on damages only in Queens County.

The jury returned a pain and suffering verdict in the sum of $1,800,000 ($800,000 past – 4 1/3 years, $1,000,000 future – 15 years). Defendants challenged the award as excessive but it was affirmed on appeal in Rojas v. New York City Transit Authority (2d Dept. 2019).

As set forth in the court’s decision, the 39 year old auto mechanic suffered a complex laceration of his right forearm with a soft tissue deficit. Here are the injury details:

  • the metal sliced plaintiff’s arm open from his wrist to his elbow with visible bone and muscle, extensive bleeding and excruciating pain
  • after passersby bandaged plaintiff’s wound at  the scene, he was taken by ambulance to Elmhurst Hospital where he was admitted for two weeks and underwent two surgeries
  • after 3 days of immobilization, Rojas underwent his first surgery under general anesthesia to remove dead skin in his arm, after which it was placed in a brace connected to a machine that applied pressure to his degloved right arm
  • five days layer, Rojas underwent his second surgery involving grafting skin from his right thigh onto his right arm

  • after the surgeries, plaintiff remained at the hospital for another week, bedridden on morphine and  antibiotics
  • at home, Rojas was confined to his bed or chair for the most part of the day, unable to bathe himself or perform other personal hygiene functions for two weeks
  • physical therapy, 2-3 times a week for two months to try to gain strength in his arm and hand, was discontinued when doctors told him there was nothing more they could do for him and he was left with diminished grip strength and significant pain; after January 2012 plaintiff never sought any further medical treatment fore his injuries
  • plaintiff claims continuing pain, his arm remains weak and he is unable to do housework or engage in recreational soccer like he used to and he wears an elastic bandage on his arm for support and to cover his large embarrassing scars

Plaintiff’s expert hand surgeon testified that he has a permanent curved defect on his right forearm from his wrist to his elbow with an irregular dark scar, with no ability for the skin on his right arm to withstand shear, no sweat glands, significant permanent range of motion losses and a dominant arm that is three times weaker than his non-dominant arm. An expert plastic surgeon testified for the defense and opined that plaintiff had the ability to use his hand and arm without any significant restrictions.

Inside Information:

  • Plaintiff returned to work after two months, albeit on light duty with help from his co-workers lifting heavy objects and holding tools with his right hand. He did not pursue a lost earnings claim.

On October 1, 2012, Arianna Garcia was driving her car through an intersection in Middletown when she was struck by a car whose driver who failed to stop at a stop sign. Garcia, then 31 years old, was granted summary judgment as to liability and the matter proceeded to a trial on damages only.

The jury awarded plaintiff pain and suffering damages in the sum of $300,000 ($150,000 past – three years, $150,000 future – 46 years). The defendants (driver and owner) argued that the award was excessive; the trial judge agreed and ordered a reduction to $125,000 ($50,000 past, $75,000 future).

In Garcia v. Fernandez (2d Dept. 2018), the appellate court reversed the trial judge’s order, held that $300,000 for pain and suffering damages is a reasonable amount in this case and upheld the jury’s $300,000 verdict.

Here are details of plaintiff’s injuries:

  • nondisplaced fracture of the base of her second metacarpal (index finger) in her non-dominant wrist with capitate contusion, requiring a brace for six months

  • herniated discs at C3-4 and C5-6 with C-5 radiculopathy
  • shoulder impingement
  • concussion with severe migraine headaches (that developed in 2014)
  • ongoing and continuing pain, limitations and loss of range of motion in both wrist and cervical spine

Plaintiff testified that she was left with difficulties dressing herself, fixing her own hair and doing simple chores such as taking out the trash or washing dishes and unable to resume a very active lifestyle that included running (45 minutes a day), hiking and dancing.  Her treating orthopedic surgeon stated that her injuries are permanent, significant and unlikely to subside in the future. Her expert neurosurgeon concluded plaintiff sustained a 75% partial disability to her cervical spine.

The defendants’ expert orthopedic surgeon testified that plaintiff sustained neither a fracture nor a herniated disc (though he did admit that her MRI showed “more than a bulge”); however, the jury specifically found that there was in fact a fracture.

The defendants argued that the trial judge’s reduction did not go far enough and that the award should be reduced to $30,000 for past pain and suffering only (and zero for the future). They noted that plaintiff:

  • had physical therapy and chiropractic treatment for just one year (mostly for her neck)
  • had no surgery or injections
  • was out of work (as a paralegal) for only one week and was working full-time within two weeks
  • treated with her hand specialist for just three times (with her last treatment within three months of the accident), received no medical treatment for her injuries in 2015 and had no future related medical appointments or plans to be treated
  • last saw her treating orthopedic surgeon three years before trial so his opinion as to permanence was therefore speculative

Inside Information:

  • Initial wrist x-rays did not disclose a fracture; six weeks after the accident an MRI revealed the fracture.
  • The defendant driver did not have a valid driver’s license (never had one) and was given a ticket for driving without a license.
  • Plaintiff’s employer is the law firm that represented her in this case, Sobo & Sobo, a preeminent firm in Orange County.

On January 24, 2014, Barbara Murphy was driving northbound on the Saw Mill River Parkway in Dobbs Ferry. Chris Ford was driving southbound before making a left turn and losing control of his car whereupon Ms. Murphy’s car was struck and she was injured.

Murphy, then 58 years old, claimed that she sustained severe spinal injuries requiring extensive surgery. In her ensuing lawsuit, Ford conceded he was at fault and the Westchester County jury awarded plaintiff pain and suffering damages in the sum of $361,500 ($250,000 past – three years, $111,500 future — one year).

Plaintiff appealed, arguing that the award was  inadequate. In Murphy v. Ford (2d Dept. 2019), the award was affirmed.

Here are details of plaintiff’s injuries and treatment following the 2014 car crash:

  • L-1 burst fracture with retropulsion of fracture fragments into spinal canal

  • C-2 displaced fracture and T-12 fracture
  • vertebral artery dissection
  • six level spinal fusion surgery at T-10 to L-3  with insertion of three rods and 10 screws
  • 27 days in hospital and rehabilitation facility
  • continuing unrelenting pain requiring narcotic pain medication
  • unable to resume prior active lifestyle which had included walking three miles a day, kayaking, swimming and biking

There was no dispute about the extent and nature of plaintiff’s injuries and treatment; the defense, though, claimed that plaintiff recovered well from the injuries she sustained in the car crash, her current symptoms and problems are due to an accident in 2003 when she fell down a flight of stairs and as of trial she was back to her baseline that she was before.

Here are details of plaintiff’s injuries and treatment following the 2003 fall down accident:

  • fell head first down a flight of 12 stairs, landing at bottom fracturing a wrist, smashing her head and resulting in neck as well as low back pain
  • treated and released from hospital next day
  • out of work six weeks, physical therapy for months
  • extensive treatment over the ensuing 10 years including pain management, orthopedics, neurology and narcotic pain medication for neck and back

Plaintiff argued that the major injury from the 2003 incident was to her neck, her back was injured only to a lesser extent and her prior back conditions paled in comparison to the injuries she sustained as a result of the 2014 car accident. While conceding that plaintiff was taking narcotic pain killers before the car crash, plaintiff’s counsel stressed that (a) the continuing and intense pain she had after the car crash required her to now take six times the amount and (b) plaintiff was active and athletic before the car crash and is now fully disabled.

Defendant brought out numerous medical records that demonstrated plaintiff complained of back pain many times over the years before the car crash. For example:

  • in 2012, an orthopedic surgeon noted she had degenerative disc disease and a herniated disc at L5-S1
  • on 7/31/13, she complained of low back pain which her pain management physician diagnosed as chronic and recommended a (second) epidural injection
  • on 10/11/13, she presented to another physician with continued neck and back pain, restricted range of motion and taking narcotic painkillers (the prescription for which was then renewed)

Inside Information:

  • The parties stipulated before trial that the total damages would be capped at $1,250,0000, the reported limits of the defendant’s insurance policy.
  • Defendant’s expert neurologist testified that it was impossible for anyone to sustain a herniated disc as a result of an accident. His expert radiologist agreed with plaintiff’s counsel that this assertion was incorrect, absurd even. Defense counsel conceded in summation that his expert neurologist was a “terrible” witness.
  • Plaintiff returned to work (part-time) and driving four months after the car crash. There was no claim for loss of earnings.
  • The appellate court decision implied that there were significant issues of credibility affecting the jury’s verdict. In fact, plaintiff’s credibility as to the extent of her pre-existing back problems was a major theme in the defense of this case.

On February 13, 2008, Charles and Julie Simon were wallpaper hangers scheduled to start work at a newly constructed office building at 1991 Marcus Avenue in New Hyde Park. That morning, Mrs. Simon drove to the site in their GMC Suburban with Mr. Simon a passenger in the front seat. Unable to access the property’s main entrance, she drove through an opening in a parking lot chain link fence made the day before by a contractor to permit a tractor-trailer to deliver rebar for an ongoing underground parking project. As they entered the lot, they realized they were on a solid sheet of ice (it had snowed and rained the day and night before) as they slid – unable to stop –  and went over a 32 foot precipice into into an unseen excavated pit at the end of the lot.

1991 Marcus Avenue, New Hyde Park

Mr. Simon was able to jump out of the moving vehicle and was physically uninjured. Mrs. Simon was killed upon impact.

Mr. Simon prevailed in his ensuing lawsuit against the building owner, construction manager and concrete contractor. The Nassau County jury found that all three shared full responsibility for the accident; their claims that Mrs. Simon bore some  responsibility were rejected.

The jury awarded damages to Mrs. Simon’s estate for the emotional distress she endured between the moment she realized she was going to be gravely injured or die and the moment of her death in the sum of $500,000 (5-10 seconds). There was no claim made for pre-death conscious (physical) pain and suffering in view of the fact that Mrs. Simon appeared to have been killed on impact. Her death certificate states the cause of death was mechanical asphyxia and blunt force trauma.

The jury also awarded pain and suffering damages to Mr. Simon in the sum of $6,000,000 ($3,000,000 past – seven  years, $3,000,000 future – 24 years).

On appeal in Simon v. Granite Building 2 (2d Dept. 2019), the award for Mrs. Simon’s pre-impact terror was affirmed and the award for Mr. Simon’s pain and suffering was reduced to $3,000,000 ($1,500,000 past, $1,500,000 future).

As set forth in the court’s decision, Mr. Simon jumped out of the car before it fell and watched from above as it fell into the pit with his wife inside screaming out his name before she died and the car burst into flames. Though taken to the hospital, Mr. Simon sustained no physical injuries that day. His pain and suffering damages award was for the emotional injuries he sustained as a result of being in the so-called “zone of danger.” As the judge charged the jury, where a defendant negligently exposes a plaintiff to an unreasonable risk of bodily injury or death, the plaintiff may recover damages for injuries he suffered in consequence of observing the serious injury or death of a member of his immediate family.

Mr. Simon suffered severe mental and psychiatric injuries that required extensive therapy and medications that were ongoing seven years later at trial and were expected to be permanent. He was diagnosed with severe and chronic post-traumatic stress disorder (“PTSD”) and Major Depressive Disorder. His symptoms include:

  • intense recurring nightmares, guilt over failing to save his wife, flashbacks and irritability
  • depression, anxiety and suicidal ideations
  • functional impairment to social activities and an inability to maintain healthy relationship with friends and acquaintances
  • extensive therapy (over 150 treatments as of trial) with social worker

Defendants argued that Mr. Simon’s pain and suffering award should have been reduced to about $700,000. They noted that several months after his wife’s death, Mr. Simon  reconnected and moved in with an old girlfriend, his therapist is not a PTSD expert and he had very limited psychiatric treatment. Furthermore, they noted that in 2011 Mr. Simon developed neurological problems, including loss of fine motor control, dragging of his right leg, incontinence and headaches that were not related to the accident but were from a fungal infection caused by bird or bat droppings resulting in meningitis and encephalitis. Their expert clinical neuropsychologist opined that Mr. Simon did not have PTSD and that he’d been improving until the fungal infection began.

Plaintiff  countered that there was nothing to controvert his evidence of mental anguish and suffering – including psychiatric disabilities – and that his meningitis disappeared after treatment with antibiotics and has nothing to do with PTSD.

The jury also awarded past and future economic damages (mainly for loss of earnings) which the appellate court approved as follows:

  • $747,500 for Mr. Simon
  • $720,000 for the estate of Mrs. Simon

Inside Information:

  • Mr. and Mrs. Simon were each 47 years old at the time of the accident. They’d been high school sweethearts and were married for 24 years. They had no children.
  • In his summation, plaintiffs’ counsel (Ted Rosenberg) asked the jury to award pre-impact terror damages in the sum of $500,000 (the exact amount awarded and affirmed); he also suggested an award for Mr. Simon’s emotional damages in the sum of $2,500,000 ($3,500,000 less than they awarded and $500,000 less than the amount affirmed on appeal).

On February 13, 2009, at 5 a.m., Anthony Shimukonas was asleep in his East Harlem apartment when he was awakened by what sounded like an explosion. It was a squad of officers from the New York City Police Department forcibly breaching and ramming through the door to execute a no knock search warrant based upon information that Mr. Shimukonas was in possession of illegal drugs and guns.

In the ensuing moments, after the lead officer approached him with a four foot long, two foot wide bullet resistant shield, the 23 year old Shimukonas was handcuffed and arrested.

In the melee, Shimukonas sustained a broken nose. He was taken to the local emergency room for minor treatment before he was booked at the police station and taken to the prison at Rikers Island. He ultimately pled guilty to various crimes and spent eight years in jail.

Shimukonas sued the police department claiming that the officers used excessive force during the arrest and that as a result he was injured. In early 2018, a Manhattan jury agreed that the force was excessive but they declined to award any compensation at all for either past or future pain and suffering.

Plaintiff appealed and in Shimukonas v. City of New York (1st Dept. 2019), the court ruled that the jury’s failure to award damages for past pain and suffering was contrary to a fair interpretation of the evidence and deviated from what would be reasonable compensation. The appellate court ordered an increase in pain and suffering damages to the sum of $200,000 (all past – nine years). The award of zero damages for future pain and suffering was not disturbed.

The court’s decision indicated that plaintiff sustained  a broken nose and orbital fractures. Here are the injury details:

  • traumatic nasal deformity – significant deviation of one side of bony dorsum with valve collapse
  • facial lacerations requiring stitches
  • open rhinoplasty (reconstructive nasal surgery) with osteotomy, dorsal spreader graft and alar rim graft

No doctors testified for either side; instead, the parties agreed that there would be no need for medical testimony. Records from the emergency room on the date of the incident and from the hospital where plaintiff underwent surgery five months later were accepted as trial exhibits.

Plaintiff testified that for two weeks after the incident he could not see out of one eye, had difficulty breathing and lost his sense of smell. He claimed at trial that his major remaining complaint was that he still had no sense of smell (except for brief intervals, about one day a month).

Inside Information:

  • There is no mention of any orbital fracture in the medical records.
  • When the police entered plaintiff’as apartment, he did indeed have guns – an AK-47 assault rifle in his bed and a loaded Glock 9 MM handgun on his nightstand. While there was no claim that plaintiff grabbed either weapon, the police claimed they used the shield to pin the plaintiff against a wall because he stood up, was moving around and disobeyed their commands to lay down on the floor,
  • Plaintiff’s pre-trial settlement demand was $25,000. In his summation, plaintiff’s attorney asked for $850,000. After the verdict, he asked for an award of $250,000.

On March 16, 2013, Alfred Chung was stopped at a red light at 216th Street and White Plains Road in the Bronx when his car was struck in the rear by a vehicle driven by Rachelle Shaw.

In his ensuing lawsuit, Mr. Chung obtained summary judgment determining that the accident was wholly the fault of the other driver and a trial on the issue of damages only began on May 5, 2016. The Kings County jury returned a verdict awarding plaintiff pain and suffering damages in the sum of $25,000 (past only – three years).

Plaintiff appealed arguing that the jury’s award was inadequate. In Chung v. Shaw (2d Dept. 2019), the appellate court ordered that the damages award be increased to $250,000 ($150,000 past, $100,000 future – 19 years).

As set forth in the court’s decision, plaintiff sustained neck injuries from the accident that required spinal fusion surgery. Here are additional injury details:

  • first medical treatment 11 days later (with a chiropractor after primary care physician would not treat plaintiff because he did not treat car accident victims)
  • five months of several days a week treatment at chiropractic clinic, including physical therapy, acupuncture, massage and steroid injections
  • herniated disc at C5-6 with radiculopathy and torn posterior longitudinal ligament
  • anterior cervical discectomy and C5-6 fusion surgery with implantation of a metal plate and four screws

Mr. Chung testified that he obtained some relief of his neck pain following the surgery but that it returned and that significant pain with aches and burning in his neck limited his pre-accident activities such as sports with his college age son, helping to take care of his elderly mother, and difficulty lifting, bending and turning.

Plaintiff’s treating surgeon testified that the accident led to all of plaintiff’s neck problems (he had no prior symptoms or spinal trauma), he has developed adjacent segment syndrome (when one or more segments in the spine are fused and no longer move, the motion segments above and below the spinal fusion compensate for lost motion at the fused levels and take on additional stress that may lead to adjacent segment weakness/disease), he has restricted range of motion and signs of post-traumatic arthritis, his prognosis is guarded, he will probably need additional fusion surgery within five years and his disabilities are getting progressively worse and are permanent.

Adjacent segment disease may develop after spinal fusion performed to stabilize a section of the spine using rods and screws.

The defendant contended that:

  • the accident was extremely minor,
  • plaintiff made no complaints of pain until days later,
  • no ambulance was summoned and plaintiff drove himself home from the scene,
  • plaintiff missed no time from work as a maintenance worker at a park (except for a month after the surgery),
  • plaintiff exaggerated his symptoms, and,
  • based upon the testimony of her expert orthopedic surgeon, plaintiff did not suffer any causally related permanent injury or disability.

Inside Information:

  • In defendant’s closing argument,  counsel argued that plaintiff’s spinal condition was merely degenerative and not related to the accident in view of pre-surgical x-rays showing things like osteophytes, bone spurs and decreased disc space. He urged the jurors to reject the claim that plaintiff’s injuries or conditions were the result of the car accident.
  • In plaintiff’s closing argument, counsel said that degeneration is in each person and it “has nothing to do with the symptom of anything. It’s that herniated disc that was pushing on the spinal cord. That’s what caused the symptoms.” He asked the jury to award $1,500,000 for past pain and suffering plus $3,000,000 for the future.

On August 26, 2012, Robert Finney was riding his motorcycle on a state road in Schuyler County. At the same time, Christopher Morton was driving his pickup truck two car lengths behind at the posted speed limit of 55 miles per hour. Tragically, Mr. Finney sustained fatal injuries when his motorcycle was struck by Morton’s vehicle.

A 1991 Harley, similar to the one in this case.

In the ensuing non-jury trial in Dutchess County, the judge ruled that fault for the crash should be apportioned 95% to the defendant and 5% to the decedent.

Plaintiff (Finney’s wife as administrator of his estate) claimed significant economic damages based upon the unrefuted testimony of an economist with expertise in the evaluation of pecuniary losses in wrongful death cases. The judge agreed with the economist and found that plaintiff sustained economic losses (before apportionment) in the sum of $1,552,667 as follows: $1,065,670 for past and future lost earnings, $87,239 for lost benefits and $369,758 for loss of household services.

Defendant moved to set aside the verdict claiming that he was not at all responsible for the crash and, in any event,  that plaintiff failed to submit sufficient evidence at trial  (such as testimony from Mrs. Finney as to what household services had been performed by him before her husband died) to support an award for loss of household services. After the trial judge denied the motion, defendant appealed.

In Finney v. Morton (2d Dept. 2019), the appellate court ruled that:

  1. the decedent’s share of liability should be increased from 5% to 15% and
  2. the household services award should be set aside because there was insufficient trial evidence to support that claim

The dispute over the household services award concerned the type of evidence that is required to support such a claim as a matter of law.

  • Plaintiff argued that the testimony of her economist was sufficient because he discussed the nature of the services that members in a two person home typically provide that are a benefit to the people in the home and are then measured this in terms of what studies have shown for average households of certain characteristics and estimates of what the value of their services in the home are.
  • Defendant argued, successfully, that there was no evidence at trial of actual expenditures incurred in replacing whatever household services decedent may have performed in the past, or of any anticipated future expenditures with regard to such services.

Plaintiff is seeking leave to appeal to the Court of Appeals. She argues that to establish a loss of household services claim in a wrongful death case, there is no precedent that requires, in addition to the expert testimony adduced in this case, evidence of the actual services a decedent performed. We will follow this case and report any future developments.

Inside Information:

  • Plaintiff was 46 years old at the time of his death. He was a mechanic who performed repair and maintenance on diesel trucks and equipment. He earned about $60,000 per year and was survived only by his wife (they had no children).
  • Plaintiff died instantly at the scene; there was no pre-death pain and suffering claim.

 

In August 2011, Noelle Feldman began treatment with William Knack, a clinical psychologist in Chappaqua. Ms. Feldman, then 53 years old, had endured lifelong experiences with sexual abusiveness. On January 10, 2013, Feldman claimed that she was raped and assaulted during a psychotherapy and counseling session.

Knack denied the allegations but a Westchester County jury found that Knack had committed rape by engaging in sexual intercourse with Ms. Knack by forcible compulsion and awarded her pain and suffering damages in the sum of $450,000 ($250,000 past – four years, $200,000 future – 20 years). The jury also awarded punitive damages in the sum of $500,000.

In Feldman v. Knack (2d Dept. 2019), the awards have all been affirmed.

Plaintiff testified at length concerning the significant emotional and psychological pain and suffering she endured as a result of her being raped by her psychologist. For example, she stated:

“I feel like not just my body was raped but my soul was raped. I feel dismantled, in that everything that makes you feel like you’re human is gone. I don’t feel alive. My life has never been easy but going to someone for help and having that person betray me in such a brutal way. I have recurrent nightmares. Horrible nightmares. I’m afraid of everything.”

Ms. Feldman further testified that she’d relapsed into alcohol abuse, doesn’t trust anyone anymore, doesn’t go out ever, totally isolated herself and doesn’t cook or bake anymore.

Ms. Feldman described her lifelong experiences with abusiveness which included being raped by her father each week until she left home when she was eight and a half years old, being sexually abused by her brother and her father’s shooting to death of her brother. Defendant argued that plaintiff’s emotional and psychological pain and suffering should be viewed in the context of this extensive prior history.

Inside Information:

  • Plaintiff introduced into evidence recordings of two separate telephone conversations she initiated with the defendant (in the presence of a police detective with the New Castle Police Department). In the second call, on 7/17/14, Ms. Feldman repeatedly confronted Knack about his having hurt, targeted and taken advantage of her and “having sex” in his office. In response, Knack repeatedly apologized stating he was “wrong”, that he “developed feelings” for her and that he acted in a way he should not have acted.
  • Plaintiff neither sought medical treatment after she was raped nor reported the incident to the police until a year later in February 2014. Furthermore, she continued to treat with defendant after she was raped, returning to him a week later and continuing to treat with him until the Fall of 2013.
  • Defendant asserted that plaintiff in fact assaulted him (albeit on a different date – 9/23/13). The trial judge noted, though, that the defendant’s overall credibility was “powerfully undermined” when the jury found it implausible that Knack would be unable to prevent or stop plaintiff’s purported attack on him (in which he claimed she pinned him down while at the same time undoing his belt, unbuttoning his waistband and pulling down his underwear).
  • In 2017, Knack filed a bankruptcy proceeding under Chapter 11 of the U.S. Bankruptcy Code. It is still pending.
  • Noelle Feldman died on April 18, 2019.

On August 7, 2014, Angel Diaz was driving his motorcycle on North Avenue in New Rochelle when he collided with a car driving in the same direction and was thrown from his bike to the roadway. Diaz sustained a serious ankle injury and sued the other driver claiming she was fully at fault for the accident.

A Westchester County jury determined that both parties caused the crash – plaintiff 55%, defendant 45% – and awarded (before apportionment) pain and suffering damages in the sum of $230,000 ($162,500 past – three years, $67,500 future – 40 years).

Plaintiff’s post-trial motion arguing that the damages award is inadequate was denied by the presiding judge whose opinion was affirmed by the appellate court in Diaz v. Dadabo (2d Dept. 2019).

Here are the injury details:

  • distal superior articular fibula fracture dislocation four inches above the ankle joint
  • ruptured deltoid and syndesmotic ligaments between tibia and fibula
  • open reduction internal fixation surgery to implant a six inch metal plate and seven screws
  • post-operative cerebral spinal fluid leak causing severe headaches until epidural blood patch procedure eight days later to extract blood from arm and inject into cervical spine to clot the blood
  • ankle to knee cast for eight months followed by a cam boot for about three months and a few months of physical therapy
  • continued complaints of pain, unable to run or take long walks

The defendant argued that plaintiff made an excellent recovery – he resumed motorcycle riding and working out within seven months, he stopped all medical treatment for his injuries about 13 months after the accident and both his surgeon and the defense expert agreed that it is unlikely plaintiff will need any further surgery.

Inside Information:

  • Plaintiff, 30 years old at the time of the accident, had served three tours of duty in Iraq as an infantryman with the U.S. Army.
  • In closing arguments, plaintiff’s counsel asked the jury to award damages in the sum of $1,200,000. Defense counsel suggested $150,000 as the “maximun fair value” for plaintiff’s past pain and suffering and nothing at all for the future.

From 1953 to 1973, Frank Gondar was in the construction business and was exposed to asbestos from insulation used in connection with boilers manufactured and distributed by Burnham Corporation.

An Old Burnham Boiler

In January 2015, when he was 85 years old, Mr. Gondar was diagnosed with mesothelioma which, two months later in his lawsuit against Burnham and others, he claimed was caused by asbestos exposure the dangers of which should have been disclosed to him. The Manhattan jury agreed that Burnham was at fault and awarded pain and suffering damages in the sum of $17,000,000 ($12,000,000 past – 17 months, $10,000,000 future – one month).

The trial judge ordered a reduction of the damages award to $7,000,000 ($5,000,000 past, $2,000,000 future).

In Ford v. A.O. Smith Water Prods. (1st Dept. 2019), the appellate court approved $5,000,000 for past pain and suffering but reduced the award for future pain and suffering to $500,000. The total pain and suffering award has thus been modified downward to $5,500,000.

Here are the injury details:

  • initial symptoms – shortness of breath, wheezing and productive cough
  • collapsed lung one month after initial symptoms requiring thoracentesis procedure to remove two liters of bloody fluid from his pleural cavity
  • diagnosed in mid-February 2015 with inoperable advanced mesothelioma
  • pleurodesis (surgery to adhere the pleural membranes together to prevent the continuing accumulation of fluid)

  • appetite loss, general weakness, severe anxiety and depression
  • 11 rounds of chemotherapy with side effects including severe hearing loss, extreme fatigue,  and chest pain, all of which got progressively worse as chemotherapy continued every three weeks
  • several rounds of immunotherapy administered directly through his chest
  • within a year, reduced to using a wheelchair and completely unable to care for himself

Plaintiff’s counsel claimed that Mr. Gondar’s pain and suffering (including loss of enjoyment of life) was “unparalleled in its scope, magnitude, frequency and extremity for persons in his age range” in large part because Mr. Gondar had, up to the point of his diagnosis (when he was 85 years old), led an extremely active lifestyle that included jet skiing and boating on a daily basis in the summer, snow skiing including team racing and serving as an instructor in the winter, avid scuba diving, motorcycle riding three times a week, hiking, camping and swimming.

Defense counsel argued that the verdict was “so large and unfounded in the evidence that it could only have been a result of passion, prejudice, sympathy, or the consideration or some other improper element of damages.”

Inside Information:

  • In summations, defense counsel suggested that $2,000,000 would be reasonable for damages; plaintiff’s counsel stated that Mr. Gondar’s largest element of damages was psychological – anxiety about the imminent end of his life – and asked for $12,000,000 for the past plus $6,000,000 for the future.
  • Mr. Gondar was too incapacitated to testify at trial. His pre-trial depositions were used instead of his live testimony.
  • Mr. Gondar died on 9/18/16; his girlfriend Noreen Ford continued the lawsuit as his executor.