On   September 6, 2006, Pauline Barrett was attempting to exit the city bus she’d been on  when her right heel got caught in a hole in the rear stairwell of the bus.

Barrett sued the transit authority claiming that she sustained serious injuries as a result of a dangerous stairwell defect that the defendant should have known about and remedied before her accident. The Kings County jury agreed but found plaintiff bore some responsibility too and it apportioned fault 75% to the defendant and 25% to the plaintiff.

In a separate damages trial, the jury awarded plaintiff $2,000,000 (all past – nine years) for her pain and suffering plus $971,000 for past and future lost earnings. Both awards were affirmed on appeal in Barrett v. New York City Transit Authority (2d Dept. 2019).

The appellate court decision did not at all mention the injuries sustained by the then 37 year old Ms. Barrett. Here are the injury details:

  • ankle sprain
  • right shoulder rotator cuff tear and impingement, requiring arthroscopic surgery to repair
  • left shoulder impingement, requiring arthroscopic surgery
  • right wrist triangular fibrocartilage complex tear, requiring open surgery to repair with anchors
  • lumbar radiculopathy and chronic neck pain, requiring epidural injections
  • depression and anxiety

Plaintiff’s damages case was bolstered by medical experts including her orthopedic surgeon, pain management doctor and psychologist who testified that (a) all of her injuries were caused by the accident, (b) plaintiff’s mobility loss in her shoulders and wrist are permanent and therefore it’s unlikely she could ever return to full time work (she’d been a financial analyst), (c) plaintiff continues to suffer from pain in her neck, back, shoulders and foot requiring ongoing medication and physical therapy and (d) objective tests demonstrated plaintiff’s significant depressive and anxiety disorders (her psychologist stated that her inability to return to work “was one of the great stressors in her life”).

The defendant argued that plaintiff’s many injuries were not caused by the accident, noting that at the scene, in the ambulance and at the hospital emergency room, she only complained about right ankle pain and swelling and that it wasn’t until she saw a doctor at a “therapy place” five days later that she  complained about her shoulders, wrist and spine. The defense contended that the case was about “a simple stumble and sprained ankle.”

Three months before the accident, Ms. Barrett had been hired by JP Morgan Chase as a financial associate/officer. Her salary was $55,000 with full benefits and eligibility for a bonus. She never returned to work. She did, though, start graduate classes in September of 2009 for two semesters and applied, unsuccessfully, to return to her prior job.

Inside Information:

  • The only doctor who testified for the defense was a neurologist who had conducted a no-fault examination in July 2007. He made it clear that he examined plaintiff only “interested in neurologic issues”, not her multiple orthopedic injuries. The defense had plaintiff examined by an orthopedist but did not call him to testify at trial.
  • Plaintiff’s orthopedic surgeon testified that even though she never fell to the ground, she tore her rotator cuffs when she fell forward while holding the door rail: “[t]he power or the weight and the momentum behind her of moving forward is being restrained by her hands behind her and that puts a lot of stress in the front of your shoulders.”

After five years in a nursing home for treatment for several medical issues including chronic urinary tract infections and a stroke, and a month at New York Presbyterian Hospital (“New York Pres.”) in October 2013 where she was treated for respiratory distress and pneumonia, Charlotte Much was transferred to a New York City nursing home on October 29, 2013. She remained in city health care facilities until her death on May 4, 2014, from cardiac arrest due to severe septic shock. She was 69 years old when she died.

Ms. Much’s estate sued New York Pres., the city hospitals and the nursing home, claiming that they negligently allowed her to  develop pressure ulcers and failed to prevent the progression of those ulcers. Defendants denied they were negligent and alternatively argued for dismissal of plaintiff’s pre-death pain and suffering claims on the ground that Ms. Much was in a vegetative state and had no level of awareness and did not experience any level of conscious pain and suffering during her hospital admissions.

The defendants’ motion for summary judgment dismissing the pre-death conscious pain and suffering claims was granted but on appeal reinstated in Estreich v. Jewish Home Lifecare (1st Dept. 2019).

The appellate court concluded that there are issues of fact as to whether plaintiff’s decedent experienced “some level of cognitive awareness” during her admission to defendants’ facilities. Here are the factors that the court found support plaintiff’s claim:

  • decedent was generally responsive to pain
  • she sometimes followed commands or responded to verbal stimuli
  • her doctors prescribed and administered medication, apparently believing she was in pain
  • she made expressions of pain or emotion such as moaning, crying, or smiling and she communicated by blinking

Defense experts noted that Ms. Much had a very extensive past medical history including diabetes, congestive heart failure, multiple strokes, vascular dementia, urosepsis and pneumonia and that (a) by April 2010 she required total care for all activities of daily living and (b) she had a history of pressure ulcers dating back to November 2006. Furthermore, during her New York Pres. admission (and thereafter), she was continually documented as being in a “chronic vegetative state”, as unresponsive, and/or without mental status.

Plaintiff’s expert opined, based upon medical records as well as testimony from her family members, that Ms. Much’s neurological deficits were not an impairment for her to perceive at least some level of conscious pain arising from her injuries even though she was non-verbal.

 

On September 19, 2013, Eleanora Rozmarin was driving her car on the Van Wyck Expressway in Queens when her car was struck in the rear. Ms. Rozmarin sued the driver and owner of the other car and her pre-trial motion for summary judgment of liability against the defendants was granted.

The matter proceeded to a trial on the issue of damages only and on October 14, 2015 the Kings County jurors awarded plaintiff $20,000 for her pain and suffering (past only – two years).

In Rozmarin v. Sookhoo (2d Dept. 2019), the appellate court agreed with plaintiff the the damages award was inadequate and it ordered that pain and suffering damages should be increased to $100,000 ($50,000 past, $50,000 future).

As indicated in the court’s decision, plaintiff, then 38 years old, sustained injuries to her spine and left shoulder. Here are the injury details:

  • L5-S1 disc herniation  impinging on the nerve root with radiculopathy and L4-5 disc bulges with thecal sac impingement
  • partial tear of supraspinatus tendon in shoulder

  • physical therapy treatment for four months
  • restricted range of motion in shoulder and back
  • continuing shoulder and back pain limiting hobbies such as piano playing and activities of daily living such as cooking and cleaning

Plaintiff’s treating neurologist testified that she has a permanent injury as did her expert orthopedic surgeon who recommended arthroscopic surgery to repair her left shoulder.

Defendants contended that plaintiff’s injuries were minimal and had resolved, based upon the following:

  • Plaintiff did not seek medical treatment at the scene, there was no ambulance called and she drove herself home; furthermore, she did not seek any medical treatment at all for two weeks.
  • Plaintiff missed no time from work as a registered nurse care manager.
  • She did not go for an orthopedic evaluation of her shoulder until almost one year after the accident.
  • Defendants’ expert neurologist opined that there were no range of motion restrictions, plaintiff sustained mere sprains which had resolved by the time of trial (and there were no herniations) and she had no permanent injuries.

Inside Information:

  • In summations, plaintiff’s attorney asked the jury to award $300,000 for his client’s pain and suffering damages; defense counsel argued that plaintiff’s injuries did not meet the minimum threshold level under the law and therefore she should not be awarded any damages at all.

On August 16, 2007, Rose Kij, then 81 years old, had a sudden attack of left-sided weakness and was taken by ambulance from her home in Buffalo to Millard Fillmore Gates Hospital. She was admitted with a diagnosis of transient ischemic attack (similar to a stroke, but usually lasting only a few minutes and causing no permanent damage).

After a week in the hospital, during which time Ms. Kij was given a daily dose of 80 milligrams of Simvastatin (a cholesterol lowering medication), her condition appeared to improve and she was transferred to a rehabilitation facility where she was able to walk and continued to improve.

The Simvastatin dosage prescribed at the hospital and continued during rehabilitation, was, inexplicably, four times what she’d been taking in the past to control her cholesterol and it ultimately caused her to succumb to rhabdomyolysis (a  dramatic, rapid, very progressive destruction and breakdown of muscle) that ruined her kidney function and caused her death on October 10, 2007.

In the ensuing medical malpractice wrongful death a lawsuit, the Erie County jury determined that the initial hospital was negligent in the care and treatment rendered to the decedent (in quadrupling her Simvastatin without explanation) and they awarded pre-death pain and suffering damages in the sum of $1,000,000 (five weeks).

The verdict as to both liability and damages has been affirmed in Mancuso v. Kaleida Health (4th Dept. 2019).

As indicated in the appellate court’s decision, the decedent suffered from the following during the five week period from her initial hospital admission until her death:

  • muscle soreness and progressive weakness, to the point where she could not lift her arms, feed herself, walk or keep her head up
  • bladder incontinence
  • kidney failure, resulting in dialysis treatment
  • awareness of impending death

Inside Information:

  • Defendant’s brief on appeal conceded that as much as $500,000 wold be reasonable for pain and suffering damages in this case.
  • The physician who signed the order prescribing 80 milligrams of Simvastatin was never called as a witness for the defense; instead, the hospital relied upon an expert who opined that it was not negligence to order high dose statin therapy for Ms. Kij because she was at risk for another stroke and the development of rhabdomyolysis was very unlikely.

 

 

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.