In 2021 and twice this year, New York’s appellate courts issued a total of four decisions in shoulder injury cases that addressed the reasonableness of the damages awarded at the trial in each case.

Here are summaries of those cases (all of which are discussed in detail in articles we published here at New York Injury Cases Blog at about the time the decisions were issued).

 

 $800,000 Affirmed for 54 Year Old Woman in Bus Crash; Henry v. New Jersey Transit Corp., 195 A.D.3d 444 (1st Dept. 2021)

Kathleen Henry was a standing passenger in a New Jersey Transit Corporation bus that rear-ended another vehicle. Ms. Henry, then 54 years old, was thrown to the floor and injured her shoulder. In her ensuing lawsuit against the bus driver and owner, Ms. Henry was granted summary judgement as to liability and the matter proceeded to a trial on damages. The Manhattan jury awarded pain and suffering damages in the sum of $800,000 ($400,000 past – four years, $400,000 future – 21 years). Both the trial court judge and the appellate division affirmed the awards as reasonable.

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

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

 

$550,000 for 46 Year Old Man in Car Crash with Torn Labrum and Post-Traumatic Arthritis; Destino v. State of New York, 203 A.D.3d 1598 (4th Dept. 2022)

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. The judgment was affirmed.

Plaintiff’s injuries included (a) a torn labrum in his shoulder causing pain and significant limitations and requiring arthroscopic surgery to repair, (b) post-traumatic arthritis of the acromioclavicular joint with the development of ganglion cysts and, (c) permanent and significant limitations of range of motion in his shoulder.

 

$600,000 for 47 Year Old Man in Trip and Fall Accident with Rotator Cuff and Labral Tears; Gontarek v. New York City Transit Auth., 197 A.D.3d 1036 (2d Dept. 2021)

Richard Gontarek tripped and fell between flights of the steps of the staircase at a subway station in Manhattan. Mr. Gontarek, then 47 years old, sued the transit authority claiming he fell and sustained injuries because of cracked tiles on the staircase platform. A Manhattan jury found that the transit authority was fully at fault and then they awarded plaintiff pain and suffering damages in the sum of $600,000 ($300,000 past – six and a half years, $300,000 future – 25 years). The defendant appealed arguing that the award was excessive. The appellate court affirmed the jury’s award.

Plaintiff sustained a right shoulder rotator cuff and labral tears with impingement requiring arthroscopic surgery to repair the rotator cuff and labral tears with anchor insertion. He claimed continuing pain, diminished strength, limited range of motion and need for future surgery

The defense noted that plaintiff did not seek any medical attention until six weeks after the accident (which plaintiff claimed was because he could not get an appointment to see an orthopedic surgeon until then) and argued that he recovered well within months of his surgery, has no permanent disability and is able to perform activities of daily living without limitations.

Plaintiff, a Marine Corps veteran, claimed he is significantly limited in recreational and hobby activities that were an important part of his life including Ironman training, scuba diving and bone carving.

Expert orthopedic surgeons testified for both sides. Plaintiff’s expert testified that he will develop arthritis in his shoulder and need to have it replaced (arthroplasty) within 10 years. Defendant’s expert opined that plaintiff will not need any future orthopedic treatment and certainly not any surgery.

 

$225,000 for 51 Year Old Man in Scaffold Fall with Labral Tear;  Joe v. State of New York, 203 A.D.3d 1258 (3d Dept. 2022)

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.

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; however, the appellate court affirmed the award.

Plaintiff claimed he sustained the following injuries: (a) cervical spine herniations and radiculopathy requiring discectomies and arthrodesis (fusion surgery) at C5-6 and C6-7, (b) lumbar spine stenosis at L3-5 requiring decompressive laminectomy and discectomy, (c) Right shoulder impingement and labral tear requiring arthroscopic surgery and (d) 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.

In 2021 and on one occasion earlier this year, New York’s appellate courts issued a total of five decisions in brain injury cases that addressed the reasonableness of the very substantial damages awarded by the juries in each case. Here are summaries of each case (all of which are discussed in detail in articles we published here at New York Injury Cases Blog at about the time the decisions were issued).

 

$20,000,000 for 30 Year Old Man in Construction Site Fall; Perez v. Live Nation Worldwide, Inc., 193 A.D.3d 517 (1st Dept. 2021)

Mark Perez struck his head and sustained traumatic brain and other injuries in a 10-foot fall onto the concrete below from the top of a vendor booth under construction at Jones Beach Theatre in Wantagh. A worker assisting the then 30 year old Mr. Perez caused the accident when he bumped into the booth with a forklift.

In his ensuing lawsuit against the forklift operator and the owner-operator licensee of the accident site, summary judgment of liability under Labor Law Section 240(1) was granted to plaintiff and the matter proceeded to a trial on damages only.

The Manhattan jury awarded plaintiff pain and suffering damages in the sum of $85,750,000 ($10,500,000 past – six and a half years, $75,250,000 future – 43 years). The trial judge ordered a reduction to $40,600,000 ($10,500,000 past, $30,100,000 future). The appellate court ordered a further and final reduction to $20,000,000 ($5,000,000 past, $15,000,000 future).

Plaintiff was airlifted to a hospital, placed in medically induced coma and on life support. He was admitted for one month before transfer to a rehabilitation hospital for two weeks. He had severe head trauma with a large epidural hematoma, bilateral subdural hematomas and a subarachnoid hemorrhage requiring emergency and three additional surgeries including a hemicraniectomy and three cranioplasties. He requires another surgery to repair a large defect in his head and to protect his brain.

He also sustained non-surgical fractures of the temporal, maxillary and cheek bones in his face, six ribs and two thoracic vertebrae, a separated shoulder and a punctured lung. He has chronic pain and extensive scarring and suffers from seizures, post-traumatic epilepsy, extensive encephalomalacia and significant cognitive deficits and is at risk for future neurological disease.

Plaintiff contended that he had permanent and profound cognitive, neurological, emotional, psychological and physical limitations that have fundamentally altered every aspect of his life. The defense argued that plaintiff made a “considerable recovery” and was malingering, noting that he exercises daily (often at a gym), is able to dress, bathe and feed himself and that he testified at trial and in five depositions with great specificity, recall, command and endurance.

After reductions by the courts, plaintiff was also awarded substantial damages for loss of earnings ($2,083,000), medical expenses (approximately $4,000,000), future rehabilitation expenses ($308,000) and future custodial care ($6,800,000).

 

$13,000,000 for 46 Year Old Woman Struck by Shopping Cart; Hedges v. Planned Security Service, Inc., 190 A.D.3d 485 (1st Dept. 2021)

Marion Hedges went to a shopping center in Manhattan with her 13 year old son. After they left a store, they walked to a parking garage station, when she was hit by a metal shopping cart which two adolescent boys threw over a railing from a pedestrian bridge 70 feet above on the fourth floor of the shopping center.

As a result, Ms. Hedges, then 46 years old, sustained severe incapacitating injuries. She sued the shopping center owners, their management company and their security company. A Manhattan jury apportioned liability 65% against the owners of the mall, 25% against the security company and 10% against the boys who threw the cart. The jury awarded pain and suffering damages in the sum of $35,000,000 ($6,000,000 past – six years, $29,000,000 future – 29 years). The trial judge agreed with the defendants that the awards were excessive and ordered a reduction to $17,500,000 ($3,000,000 past, $14,500,000 future). On appeal, the liability determinations were affirmed but the appellate court further reduced the pain and suffering damages award to $13,000,000 ($3,000,000 past, $10,000,000 future).

Plaintiff was confined for two weeks in a hospital, followed by five weeks in a rehabilitation facility and one and a half years of outpatient therapy. She sustained six fractured thoracic vertebrae, a scapula fracture, broken ribs and a spleen laceration, and had continuing pain, extensive organic brain damage with numerous bleeds and lesions, permanent structural frontal lobe damage and brain shrinkage, memory loss, double vision, inability to control emotions, headaches, dizziness and incontinence. She requires use of cane to walk.

Defendants argued that the pain and suffering awards were excessive claiming that within three weeks of the incident plaintiff “recovered from her injuries other than her brain injury [with respect to which there were no skull fractures and no brain surgery] and was traveling independently.”

Plaintiff had been a real estate broker before the incident but never returned to work. The jury awarded her loss of earnings damages in the sum of $2,500,000 ($1,000,00 past, $1,500,000 future – 29 years). The trial judge reduced this award to $1,900,000 ($400,000 past, $1,500,000 future) and the appellate court affirmed the reduced amount.

The jury also awarded (and the appellate court affirmed) future medical expense damages for a home health aide in the sum of $3,175,000 (29 years).

Plaintiff’s son was awarded emotional distress damages in the sum of $2,500,000 ($1,500,000 past, $1,000,000 future – 54 years). The trial judge reduced this award to $2,200,000 ($1,200,000 past, $1,000,000 future) and the appellate court affirmed the reduced amount.

Plaintiff’s husband was awarded (and the appellate court affirmed) loss of services and society (loss of consortium) damages in the sum of $2,000,000 ($1,000,000 past, $1,000,000 future – 22 years).

 

$10,000,000 for 40 Year Old Victim of Medical Malpractice; Redish v. Adler, 195 A.D.3d 452 (1st Dept. 2021)

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

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

The jury agreed with plaintiff finding that four of the doctors treating her were negligent and they awarded her pain and suffering damages in the sum of $90,000,000 ($60,000,000 past – nine years, $30,000,000 future – 34.5 years). The trial judge agreed with the defense that the award was excessive and he reduced it to $30,000,000 ($7,000,000 past, $23,000,000 future). The appellate court affirmed the liability findings but reduced the pain and suffering award even further – to $10,000,000 ($3,000,000 past, $7,000,000 future).

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

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

 

$9,000,000 for 67 Year Old Victim of Medical Malpractice; Yu v. New York City Health and Hospitals Corp., 191 A.D.3d 1040 (2d Dept. 2021)

Carlyle Roberts was brought by ambulance to Kings County Hospital after being involved in a hit-and-run car crash. He was treated for a fractured ankle and a head injury. Mr. Roberts underwent surgery for his ankle injury but his hospitalization was extended for weeks because he had symptoms from subdural hematomas. Mr. Roberts, then 67 years old and retired, sustained a stroke that left him with extensive permanent injuries. He sued the hospital claiming a failure to timely address an advancing subdural hematoma.

The Kings County jury determined that the hospital had committed malpractice by not timely ordering CT scans and the jury then awarded pain and suffering damages in the sum of $21,500,000 ($10,000,000 past – six years, $11,500,000 future – 11 1/2 years).

The defendant argued not only that the damages award was excessive but also that the entire verdict should be set aside because the plaintiff’s counsel’s summation was improper and unfair. The judge agreed and issued a post-trial decision finding that the summation was so improper that it tainted the verdict and deprived the defendant of a fair trial. Therefore, she ordered the verdict vacated and directed that a new trial be held.

On plaintiff’s appeal, the court agreed that some of plaintiff’s attorney’s conduct was improper but the court found that it was not so pervasive or prejudicial such that the liability verdict should be set aside; therefore, it was reinstated. The court did, though, agree with the defendant that the damages award was excessive and the pain and suffering award was reduced to $9,000,000 ($4,000,000 past, $5,000,000 future).

The jury also awarded, and the appellate court did not disturb, damages for future medical and other expenses in the sum of $7,861,000 (including, mainly, about $500,000 a year for 11 1/2 years of support care).

Plaintiff claimed his injuries left him a functional paraplegia. He underwent a craniotomy, was admitted for one year in a rehabilitation facility, needs assistance with daily activities, is primarily wheelchair bound, has cognitive impairment, left side contractures, spasticity, incontinence and hemiparesis.

 

$2,200,000 for Newborn’s Hypoxic Injury;  Young v. Heller, 201 A.D.3d 1018 (2d Dept. 2022)

Vashti Daisley arrived at Vassar Brothers Medical Center in Poughkeepsie in the late stages of pregnancy with 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 and that had a Caesarean section delivery been performed that day her son’s brain damage 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). The judgment was affirmed on appeal.

Plaintiff was in respiratory arrest at birth for six minutes requiring a ventilator for 27 days. He sustained a hypoxic injury that caused permanent brain damage with residual impairment of muscles 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 and ADHD. He was confined to the neonatal intensive care for four months and underwent six years of therapy.

 

 

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.