On March 1, 2010, Raul Marquez sustained injuries to his knees and back when he fell from an A-frame ladder in a construction incident while painting crown molding in a common hallway of the 62 unit cooperative apartment building at 171 West 79th Street in Manhattan.

The Site of the Accident

Mr. Marquez, then 33 years old, was employed as a commercial painter by MQ Restoration Corp. He sued the building owner, 171 Tenants Corp., under the Labor Law, claiming that the owner was liable for his injuries because the ladder was unsecured and defective.

After determining that the defendant was at fault, the jury awarded plaintiff damages in the total sum of $6,147,211, as follows:

  • pain and suffering in the sum of $2,049,900 ($683,300 past – 11 years, $1,366,600 future – 20 years),
  • medical expenses in the sum of $3,847,565 ($357,266 past, $3,490,299 future – 33 years), and
  • lost earnings in the sum of $249,746 ($149,277 past, $100,469 future – six years)

The defendant appealed claiming that various rulings by the trial judge resulted in an unfair trial and, alternatively, (a) that the pain and suffering award included in large part damages for injuries not connected to the accident and (b) the future medical expense award was not based upon legally sufficient evidence or proven with reasonable certainty.

In Marquez v. 171 Tenants Corp.. (1st Dept. 2023), the judgment entered upon the jury verdict has been affirmed.

Here are the injury details:

  • Right Knee – torn meniscus requiring two arthroscopic surgeries
  • Left Knee – torn meniscus requiring two arthroscopic surgeries
  • Back – herniated discs at L4-5 and L5-S1 requiring a facetectomy and a laminotomy

Plaintiff’s treating surgeons testified that he will need bilateral total knee replacements in the future as well as lumbar fusion surgery.

The defense argued, unsuccessfully, that the only injury plaintiff sustained in this accident was to his right knee and therefore the damages awards were excessive and without basis.

Inside Information:

  • Plaintiff’s future medical expenses award, based upon his expert’s life care plan and testimony, included $1,262,480 for home health aide costs, $376,697 for physical therapy, $970,210 for knee surgeries and $2,236,681 for back surgeries. The defense did not present its own life care plan expert.
  • Plaintiff’s eminent attorneys, Nicholas E. Tzaneteas and Stephen H. Frankel, demanded $5,000,000 to settle before the verdict against an offer of $375,000.

On April 1, 2016, Jamie Hawkins went to her dermatologist at New York Dermatology & Mohs Surgery Group in Commack to check out a skin lesion on her head. She was seen by a physician’s assistant who found nothing suspicious and advised her it was nothing to be concerned about.

On May 19, 2017, after nagging concerns about the lesion, Ms. Hawkins consulted a new dermatologist who took a biopsy and discovered that she had a malignant melanoma on her scalp.

Ms. Hawkins, then 30 years old, sued her former dermatology group and the physician’s assistant claiming that they were negligent when, on April 1, 2016, they failed to clinically identify a likely melanoma on her scalp.

Plaintiff claimed that defendants’ malpractice resulted in a 13 month delay in diagnosis that allowed the cancer to grow from Stage 1 to Stage 2. Instead of a 98% chance of a cure at 10 years, plaintiff was left with an 88% chance.

The Suffolk County jury agreed with the plaintiff and determined that defendants’ malpractice caused the delayed diagnosis and a diminished chance of a better outcome. The jury then awarded plaintiff pain and suffering damages in the sum of $1,300,000 ($1,000,000 past – five and a half years, $300,000 future – 45 years).

Defendants challenged both the liability verdict and the amount of damages by way of a post-trial motion. They argued that the damages award was excessive because the only past damages consisted of a slightly increased area of resection, and a node biopsy and that the diminution in the rate of staying cancer free was “slight.” In Hawkins v. New York Dermatology & Mohs Surgery Group, PLLC (Supreme Court, Suffolk County, 2023), though, the trial judge denied the motion in all respects.

Inside Information:

  • The jury also awarded loss of consortium damages in the sum of $100,000 to plaintiff’s husband.
  • Most delayed diagnosis of cancer cases deal with a progression to Stage 4 which is when the cancer has spread to other parts of the body, is often incurable and the prognosis is very poor. In this case, plaintiff’s eminent counsel, Michael G. Glass, pointed out to the jury that those like Ms. Hawkins with melanoma and a reduced loss of chance from 98% to 88% have a Sword of Damocles hanging over them because that loss of chance meant that in 10 years, 12% of them would die from the cancer.

On February 1, 2013, Marie Petit was a passenger in a city bus that crashed into another vehicle on Ralph Avenue in Brooklyn.

Ms. Petit, then a 55 year old home health aide, sued both drivers claiming she sustained spinal injuries.

A Kings County jury (a) determined that the accident was wholly the fault of the bus driver and (b) awarded plaintiff pain and suffering damages in the sum of $2,100,000 ($600,000 past – six years, $1,500,000 future – 25 years). The trial judge reduced the award to $1,800,000 ($600,000 past, $1,200,000 future) and in Petit v. Archer (2d Dept. 2023), the appellate court affirmed the reduction.

Here are injury details:

  • Herniated disc at C4-5 with radiculopathy requiring cervical diskectomy and fusion surgery with insertion of a plate and screws
  • Continuing neck and back pain with 50% loss of range of motion in her neck and 40% in her back
  • Unable to return to work or participate in activities previously performed including cooking, doing laundry and church activities
  • Will need additional cervical surgery in 10 years

The defense experts (an orthopedic surgeon and a radiologist) testified that plaintiff had significant degeneration in her spine that pre-existed the accident, there was no sign of any fresh, ruptured or acute traumatic discs and the surgery was not related to the accident.

The jury also awarded plaintiff damages for loss of earnings in the sum of $875,000 ($350,000 past – six years, $525,000 future – nine years.; however, this award was reduced to $541,000 ($145,000 past, $396,000 future) based upon her tax returns.

Finally, the jury also awarded plaintiff damages for future medical expenses in the sum of $1,800,000 (25 years); however, this award was reduced to $700,000 based upon the testimony of plaintiff’s experts as to the cost of various items such as pain medication, doctor visits, epidural injections and physical therapy treatment.

On March 28, 2017, Otmar Boser was driving his car on the Bronx River Parkway in Yonkers. While making a left turn onto Leewood Avenue, his vehicle was struck in the rear passenger side by a loaner vehicle owned by Scarsdale Shell Service Center and operated by one of its customers.

Mr. Boser, a 79 year old retired professor of electrical engineering, was grievously injured and died a week later. His widow sued the other driver; the lawsuit was quickly settled for the driver’s $50,000 policy limits. Thereafter, Mrs. Boser commenced an arbitration proceeding under the so-called underinsurance (“SUM”) provisions of Scarsdale Shell’s policy with Harleysville Insurance Company.

On 11/7/19, an American Arbitration Association arbitrator heard testimony and considered extensive documentation before signing her award that day finding that (a) each driver was 50% at fault and (b) $4,000,000 represented reasonable compensation for decedent’s pain and suffering.

Claimant was awarded $950,000 because (a) her husband was 50% at fault (reducing the $4,000,000 to $2,000,000), (b) the SUM policy limit was $1,000,000 and (c) $50,000 was already received from the other driver’s insurance company.

The day after the arbitration hearing but before the parties were aware that a decision had already been rendered by the arbitrator, Harleysville offered $450,000 to settle the claim. The day after that, claimant’s attorney emailed the carrier that he had been authorized to accept the offer.

When AAA was notified by phone on 11/12/19 that the case had been settled, the parties for the first time learned that the arbitrator’s decision had already been made and was on its way to them in the postal mail. Claimant took the position that there was no binding settlement and she should be paid the $950,000 award; the insurance company claimed the $450,000 settlement was binding. In Harleysville Ins. Company v. Boser (2ed Dept. 2023), the appellate court affirmed the lower court’s holding that there was no binding settlement agreement, the arbitration award stands, and claimant must be paid $950,000.

Here are the injury details:

  • C5-6 vertebral bodies unstable fracture
  • hemorrhage in spinal canal
  • several displaced fractured ribs, sternum fracture and collapsed lung
  • slow weeklong progression from use of extremities to paralysis as spinal bleeding continued and cord pressure increased

On April 4, 2017, Mr. Boser, while remaining fully engaged in his treatment decisions at the hospital, made the determination to refuse a tracheotomy and discontinue artificial feeding and breathing, opting for a do not resuscitate (“DNR”) order. He passed away later that same day as a direct result of the injuries he suffered from the motor vehicle crash.

Jason Lanza was born in 2008 while his parents were tenants in a multi-family building on Eastern Parkway in Farmingdale. In 2012, the Nassau County Department of Health conducted an inspection and found numerous lead hazards throughout the apartment including the paint on the windows and other areas in Jason’s bedroom.

In 2014, Jason’s parents sued the building owner claiming that, due to elevated lead levels in his body from his exposure to lead based paint in their apartment, Jason sustained brain injuries. In particular, they claimed Jason had speech and language deficits and an abnormally low IQ.

The jury ruled in plaintiff’s favor finding that the landlord failed to keep the premises reasonably safe and that his negligence was a substantial factor in causing Jason’s elevated lead levels. They then awarded pain and suffering damages in the sum of $25,000 ($10,000 past – 11 years, $15,000 future – one year).

Plaintiff appealed arguing that the damages award was inadequate. In Lanza v. Delbalso (2d Dept. 2023), the appellate court affirmed the award.

The damages proof was largely a battle of experts.

  • Plaintiff presented a pediatric neurologist who examined Jason in 2018, reviewed his medical and school records and opined that Jason’s elevated levels of lead in his blood caused a permanent IQ loss of 15 points leaving him functioning in the below average range with various developmental delays in school.
  • Defendant presented a clinical psychologist who also reviewed Jason’s records, performed a three hour neuropsychological exam of him in 2015 and opined that Jason was not suffering from any permanent damages as a result of his exposure to lead. The expert noted that plaintiff’s speech delays were diagnosed when he was 18 months old, before there was any actionable exposure to lead and, in any event, they fully resolved by the time he started elementary school. He also pointed to evidence that plaintiff was doing well in school, did not have any special education or therapy and has no behavioral problems.

On March 5, 2015, Vale Thomas was stopped in his car at a red light on Rockaway Boulevard in Queens when his vehicle was struck from behind by another vehicle. Mr. Vale, then 64 years old, struck his knee on the dashboard and was jolted backwards and forwards.

In his ensuing lawsuit against the driver and owner of the other vehicle, full fault for the crash was found to be on the other driver’s part and the case then proceeded to a damages only jury trial.

The jury returned a verdict that the accident was not a substantial factor in causing plaintiff’s injuries. Therefore, they made no award at all for any damages, despite plaintiff’s proof that he underwent a two-level cervical discectomy and fusion surgery on 7/16/15 and arthroscopic knee surgery on 6/18/15.

Plaintiff appealed but in Thomas v. Hudson Group HG Retail, LLC (2d Dept. 2023), the appellate court affirmed the verdict.

The defense argued, successfully, that plaintiff’s injuries were wholly due to pre-existing degenerative conditions that were caused by a 10/19/08 car accident. In that accident, plaintiff sustained similar injuries – neck, back, both shoulders and both knees. He underwent about seven months of medical treatment (but no surgery) and claimed then that he was totally disabled. In the new case, he claimed he’d fully recovered from his 2008 accident and had been asymptomatic for over five years.

Inside Information:

  • Just before the verdict was rendered, plaintiff rejected a so-called high-low settlement agreement whereby whatever the verdict amount, he would be awarded at least $300,000 but no more than $1,750,000.
  • In summations, the defendants’ attorney asked the jury to award no more than $10,000 for pain and suffering if they determined that plaintiff’s prior injuries were exacerbated or aggravated by the new accident while plaintiff’s attorney requested a pain and suffering award of $5,500,000.
  • Plaintiff did not assert a loss of earnings claim.

On October 30, 2016, Michael Davis and his father-in-law R. Foster Hinds were installing a tree stand for deer hunting on property in upstate Canisteo owned by Mr. Hinds and his wife. After the stand was installed, Mr. Davis stepped onto its platform to test it and a defective ratchet strap broke causing him to fall and sustain serious back injuries.

In Mr. Davis’s ensuing non-jury lawsuit, the judge in Steuben County determined that Mr. and Mrs. Hinds were negligent and he awarded plaintiff pain and suffering damages in the sum of $325,000 ($100,000 past – five years, $225,000 future -22 years).

Defendants appealed but, in Davis v. Hinds (4th Dept. 2023), the judgment was affirmed (except that the claims against Mrs. Hinds were dismissed).

Here are the injury details:

  • L-1, L-3 and L-4 fractures
  • Spinal fusion surgery T10-S1
  • Continuing pain, limitations as to standing and lifting and, unable to resume recreational activities

Inside Information:

  • There was no expert medical testimony adduced at trial; instead, the parties agreed to use medical records only.
  • In his closing argument, plaintiff’s attorney asked the judge to award $400,000 for pain and suffering damages.
  • Plaintiff, 47 years old at the time of his accident, returned to work within three months as a high school physical education teacher and did not assert any claims for lost earnings (or medical expenses).

In August of 2014, while traveling in France, Lourdes Ameziani thought she was pregnant. She bought a home pregnancy test and the result was positive. She called her obstetrician in New York who told her to come to the office for a more definitive blood test. She flew home but woke up on the next day, August 6th, with abdominal pain and nausea before she arrived at her doctor’s office, took the blood test and was told that she was in fact pregnant.

For her pain and nausea, Ms. Ameziani, then 41 years old, was given Tylenol. Later that day, at home, the pain was unrelenting so she called her doctor whose response was to go to a radiologist for an ultrasound and sonograms. An ectopic pregnancy was ruled out but severe pain especially on the right side continued. Unknown at this point was that Ms. Ameziani had an inflamed appendix. She was advised to go to the emergency room if her pain got worse.

That night, still in tremendous pain, she called her doctor’s office and the on call doctor told her on the phone that it sounds like appendicitis and she should call an ambulance. She did and was admitted to the hospital where her appendix ruptured later that night requiring emergency laparoscopic surgery in which the doctors found peritonitis, gangrene and an infection.

In her ensuing medical malpractice lawsuit against her obstetrician and the radiologist, plaintiff claimed that the delayed diagnosis increased the severity of the injury from mere appendicitis to a perforated appendix that required extensive surgery, an extended hospital stay, much more and continuing pain and an early miscarriage of the baby.

The Manhattan jury ruled that both doctors were at fault. Plaintiff was also found to be at fault for not going to the emergency room sooner. Before apportionment (30% to the obstetrician, 41% to the radiologist and 29% to plaintiff), the jury awarded pain and suffering damages in the sum of $725,000 (all past – seven years).

Neither defendant challenged the award as excessive and the defendant obstetrician settled with plaintiff after the verdict.

The radiologist appealed, though, arguing that even if her sonogram report did not rule out the possibility of appendicitis, that was not a substantial factor in causing the delayed diagnosis and resulting injuries. The appellate court agreed and in Ameziani v. Subramanyam (1st Dept. 2023), the judgment against the radiologist was vacated and the complaint against her dismissed.

Inside Information:

  • In her summation, plaintiff’s counsel asked the jury to award past pain and suffering damages in the sum of $2,000,000; she did not ask for an award of future pain and suffering damages.
  • In 2017, plaintiff and her husband moved to Oregon to farm legal marijuana.

On September 2, 2012, Joseph Stewart was admitted to New York Hospital Queens complaining of persistent headaches. Blood tests revealed abnormally high leukocytes indicating an infection. Ten days later he was transferred to a rehabilitation facility but had to be returned to the hospital after his leukocyte level kept climbing and he was exhibiting unusual confusion.

Mr. Stewart, a 73 year old retiree, died at the hospital 28 days after his initial admission. The cause of death was acute bacterial meningitis and a mycotic aneurysm.

New York Hospital Queens

In the ensuing medical malpractice lawsuit against the hospital, the jury found that Mr. Stewart should not have been discharged on September 12th without having accurately diagnosed his condition and that this was a substantial factor in causing his death. The jury then awarded pre-death conscious pain and suffering damages in the sum of $1,300,000 (28 days).

In Stewart v. New York Hospital Queens, (2d Dept. 2023), both the liability and damages verdicts have been affirmed.

The decedent’s wife and son, who visited with him every day, testified that he was often holding his head and moaning while complaining of and suffering from near constant head pain. The pain was not relieved by medications and it got worse and worse as the month wore on.

The defense argued that the hospital records indicated that decedent’s pain was controlled by painkillers and sedatives and that he was not in pain much of the time.

Inside Information:

  • Meningitis is known to be extremely painful and can cause death within days without proper treatment.
  • The case went to trial not only against the hospital but also against the decedent’s cardiologist but the claims against her were dismissed during the trial.
  • Among the claimed departures listed on the verdict sheet, the jury found that the hospital should have consulted an infectious disease specialist but that this departure was not a substantial factor in causing decedent’s injuries.

On December 17, 2013, Michael Sabine was injured when he was driving his vehicle in Waterloo and a state park employee in a state-owned pick-up truck lost control and crossed into his lane causing a crash.

Mr. Sabine, 61 years old, was granted summary judgment as to liability by a court order issued on 9/26/18. The case then proceeded to a trial on the issue of damages before the Court of Claims judge.

The judge issued her damages decision on 10/27/21 awarding claimant pain and suffering damages in the sum of $550,000 ($375,000 past – eight years, $175,000 future).

Mr. Sabine claimed he sustained nerve root impingement in his neck that ultimately required decompression and fusion surgery with the implantation of a titanium rod from C3-7. His pain continued through trial and his doctor testified that his range of motion limitations are permanent and he may have chronic lifetime pain.

The defense argued that Mr. Sabine’s pain and limitations were due to degenerative disc disease that preexisted the accident and he would have needed the surgery even had the accident not occurred.

Claimant countered that he had never before had neck pain or limitations and that at the time of the crash he felt he was in the best shape of his life while training for the “American Ninja Warrior” competition.

After judgment was entered on the $550,000 award (adding $6,187.50 in interest from 10/27/21 – the date when the judge finally determined that claimant’s injuries met the so-called threshold under Insurance law Section 5102), claimant appealed arguing that the interest rate accrual date should have been 9/26/18 (when summary judgment as to liability was determined). The difference was about $150,000 (about there years of interest on the $550,000 award at the rate of 9% per annum). In Sabine v. State of New York (4th Dept. 2023), though, the appellate court disagreed and the judgment was affirmed.

Inside Information:

  • The trial on damages was “virtual” in January 2021 having been delayed due to the COVID pandemic.