New York Injury Cases Blog | Medical Malpractice Law

Damages Verdict Affirmed for Hip and Knee Injuries

By John Hochfelder on September 17, 2018 Posted in Hip and Pelvis Injuries, Knee Injuries

On May 26, 2010, Anthony Rivera was driving his car on Long Ridge Road in Pound Ridge when another car made a left turn and crashed into him. Mr. Rivera, then 30 years old, sustained significant hip and knee injuries.

Mr. Rivera sued the driver and owner of the other vehicle and was awarded summary judgment of liability. The case then proceeded to a trial to determine the amount of damages.

The Westchester jury awarded plaintiff pain and suffering damages in the sum of $1,300,000 ($300,000 past – five years, $1,000,000 future – 40 years). He was also awarded damages for medical expenses ($170,000 past, $240,000 future) and loss of earnings ($75,000 – past). The awards have been affirmed in Rivera v. Kolsky (2d Dept. 2018).

Here are the injury details:

Intra-articular comminuted fracture dislocation of left hip (posterior wall acetabular fracture plus osteochondral femoral fracture) requiring two days of skeletal traction with the insertion of a distal femoral traction pin and then removal of the pin, open reduction internal fixation of the acetabular fracture with a bone graft harvest, screws and a nine-hole plate and open treatment of the femoral fracture
Three week emergent hospital admission followed by five week admission to nursing home for rehabilitation
Continuing pain and limited range of motion in hip and post-traumatic arthritis requiring hip replacement surgery within four years
Left knee torn meniscus requiring total knee replacement surgery within three to five years

A Post-Op X-Ray Similar to Plaintiff’s

Before the accident, plaintiff had been working at Home Depot earning about $25,000 a year. He was out of work for three years after the accident when he returned to Home Depot in the kitchen design department. There was no claim for future loss of earnings.

The defendants’ theme at trial was that plaintiff exaggerated his injuries. They conceded he sustained a significant hip injury with residuals but argued that “he’s driving, he’s going to work, he’s not using a cane … he does everything everybody else does” and he deserves no compensation for his alleged knee and pre-existing back injuries. The verdict sheet contained a specific question as to whether the accident was a substantial factor in bringing about the injury to plaintiff’s back and they answered “no.” As to the knee, an MRI shortly after the accident disclosed a torn meniscus but two years later, another MRI was taken and plaintiff’s treating doctor then opined there was no meniscal tear and he elected not to perform an arthroscopy. Plaintiff’s medical expert at trial disagreed. The defense position was that there was no tear and any knee pain plaintiff was experiencing was due to his morbid obesity.

Inside Information:

Defendants opposed plaintiff’s pre-trial motion for summary judgment as to liability claiming that (a) winding, blind curves at the accident location caused the defendant driver to be unable to see the plaintiff’s vehicle and (b) plaintiff may have been speeding. These arguments were rejected and plaintiff’s motion was granted.
After plaintiff and his medical expert testified, the defendants rested without calling any witnesses.
In his summation, plaintiff’s attorney suggested $6,000,000 for pain and suffering damages; defense counsel simply stated that the jury should award what is reasonable or adequate (for the hip only), adding “He’ll probably blow it on something anyway, but at least give him what he’s entitled to for the hip.”
Plaintiff’s pre-trial settlement demand was $1,000,000 against an offer of $350,000.
This case was hard fought by one of New York’s most highly regarded plaintiff personal injury lawyers, Michael Ronemus and a worthy counterpart from the defense side, Robert Ondrovic.

Verdict Affirmed for Passenger Who Fell Inside Moving Bus

By John Hochfelder on September 10, 2018 Posted in Back Injuries, Knee Injuries, Neck Injuries

On April 2, 2012, at about 5 p.m., Apolonia Castillo boarded a city bus on 57th Avenue between 97th Place and 98th Street in Queens. After paying her fare, she fell and sustained injuries to her left knee and spine.

Ms. Castillo, then 72 years old, sued the bus company claiming that the driver caused her to fall when he pulled away from the bus stop while she was still standing at the fare box in the front of the bus, not allowing her to safely move to a seat before the accident.

Before trial, defendant moved for summary judgment claiming that (a) plaintiff was already seated when the driver accelerated away from the bus stop and (b) plaintiff’s injuries failed to meet the statutory threshold under Insurance Law Section 5102. The motion was denied in its entirety.

The Queens County jury agreed that the driver was fully at fault. In the immediately ensuing second phase of the trial, the jury found that plaintiff sustained both a significant limitation of use of a body function or system and a permanent consequential limitation of use of a body organ or member and they awarded plaintiff pain and suffering damages in the sum of $1,500,000 ($500,000 past – three years, $1,000,000 future – 10 years). Both the liability and damages verdicts have been affirmed on appeal in Castillo v. MTA Bus Co. (2d Dept. 2018).

Here are the injury details:

Left Knee – torn lateral and medial menisci requiring arthroscopic surgery (menisectomies, chondroplasty of the trochlear groove, lysis of adhesions and synovectomy) with continued difficulty walking (unable to tolerate more than one block due to pain)
Cervical Spine – disc bulges at C2-3 through C7-T1 with diminished range of motion
Lumbar Spine – disc bulges at L3-4 and L5-S1 with radiculopathy causing weakness and loss of sensation in left leg
Post-Concussive Syndrome

Six months before the accident, plaintiff reported to her primary care physician that she had knee pain and she was referred for an orthopedic evaluation (which did not occur). There were no further complaints of knee pain in the records of subsequent pre-accident visits to her physician and plaintiff testified that before the accident she had only mild knee discomfort on an infrequent basis. Plaintiff’s orthopedic surgeon opined that (a) her mild symptoms prior to the accident were greatly and severely worsened due to and following the accident and (b) she is at great risk for progressive breakdown of her knee’s remaining articular cartilage and will ultimately require a total knee replacement.

Inside Information:

Prior to the accident, plaintiff had intermittent neck pain for many years due to a motor vehicle accident when she was 35 years old.
Plaintiff’s pre-trial settlement demand was $750,000; there was no offer.

Appellate Court Reinstates Jury’s Shoulder Injury Pain and Suffering Damages Verdict After Trial Judge’s Reduction

By John Hochfelder on August 30, 2018 Posted in Shoulder Injuries

On October 16, 2013, Mary Ann Greblewski tripped and fell over a concrete wheel stop in Highland Hospital’s parking garage in Rochester. Ms. Greblewski, then 80 years old, sustained shoulder injuries and sued the hospital claiming that the premises was dangerous because there was inadequate lighting in the garage and the wheel stop was improperly positioned, as it extended into the pedestrian walkway.

The Accident Location

The hospital sought pre-trial dismissal of the case arguing that the wheel stop was in its proper position, the garage was adequately illuminated and, in any event, the wheel stop was open and obvious. The motion was denied and the case proceeded to trial at which the Chemung County jurors found the hospital fully at fault for the accident and they awarded plaintiff pain and suffering damages in the sum of $550,000 ($250,000 past – three years, $300,000 future – 10 years).

The trial judge determined that the award was excessive and ordered a reduction to $225,000. In Greblewski v. Strong Health MCO, LLC (3d Dept. 2018), the liability verdict was affirmed and the jury’s $550,000 award was reinstated.

After she fell, plaintiff was taken by stretcher to the emergency room where x-rays of her left shoulder disclosed that she’d sustained a four-part fracture of her proximal humerus.

Initially treated with a sling for six weeks and assisted by home health aides, Ms. Greblewski then underwent a 12 week course of physical therapy. At the time of trial, she was still in some pain but had significant deficits and disabilities including:

permanent range of motion losses in shoulder (e.g., can only lift arm to 110 degrees out of a possible 180 degrees)
limited strength in her left hand
difficulty curling her hair, bathing and getting dressed
unable to provide same level of care to her disabled adult daughter as she used to for almost 60 years

A significant element of of the damages testimony presented at trial was plaintiff’s loss of enjoyment of life and emotional pain and suffering caused by her inability to care for her daughter Cathy who has had cerebral palsy since birth, is confined to a wheelchair and requires assistance with all activities of daily living. Plaintiff had been Cathy’s primary caregiver – “her greatest joy and greatest duty.”

The defense argued that the trial judge’s reduction of the damages award did not go far enough because plaintiff did not require shoulder surgery (she was not a good candidate due to her age). In response, plaintiff argued that the fact that she was not a surgical candidate does not diminish the value of her case; rather, it enhances it because plaintiff did not have the option of surgical intervention to help her regain mobility in her shoulder joint.

Inside Information:

The day before her accident, Ms. Greblewski, along with her husband and two adult daughters, had driven from Elmira to a Rochester hotel as she was scheduled to undergo early the next morning an outpatient vulvectomy for vulva cancer at the defendant’s hospital. After she was treated for her shoulder in the ER, Ms. Greblewski opted to undergo the vulvectomy. She was cleared for surgery, underwent the procedure successfully and was discharged the next day with instructions to follow up with a local orthopedic surgeon.
The trial judge instructed the jury that plaintiff’s life expectancy, according to federal government statistics, was 7.1 years; however, he also told the jurors that the figure was not binding upon them and they may consider it together with their own experience and the evidence they heard regarding the condition of plaintiff’s health, habits and activities. In doing so, the jury set plaintiff’s future pain and suffering period at 10 years.
In summations, defense counsel contended that the hospital was not negligent but that if the jury should disagree then $30,000 for plaintiff’s pain and suffering would be fair; plaintiff’s counsel suggested $500,000.

Verdict for Plaintiff Affirmed in Case of Unwitnessed Fall Leading to Death Four Months Later

By John Hochfelder on August 29, 2018 Posted in Wrongful Death

On September 3, 2013, at about 11 p.m., William Tyrell fell down an exterior concrete 16 step staircase at 243 Vrooman Avenue, a two story, two apartment rental building in Amsterdam, New York. Mr. Tyrell, then 77 years old, had been visiting the upstairs tenant. He was found at the bottom of the staircase, unconscious. There were no witnesses to the fall.

243 Vrooman Avenue, Amsterdam, NY

Mr. Tyrell was rushed by ambulance to the local hospital where he was conscious upon admission and diagnosed with the following injuries:

basilar skull fracture
subdural cranial hematoma
cerebral hemorrhage
fractured occipital bone

Within a few hours, Mr. Tyrell was transferred by ambulance to Ellis Hospital in Schenectady because his head injuries required a higher level of care than the local hospital could provide. There, he suffered seizures and a craniotomy was performed to alleviate the hematoma. He was placed on a ventilator and then in a chemically induced coma. Unsuccessful weaning from the intubation resulted in a tracheostomy about a month after the fall.

On October 11, 2013, Mr. Tyrrell was transferred to Pathways, a rehabilitation facility in Niskayuna. He returned to Ellis Hospital from Pathways to deal with critical health issues on three occasions in the next three months and again on January 5, 2014, when he died from his severe brain injuries.

Two months before Mr. Tyrell’s death, he commenced a lawsuit against the building owner claiming he fell because the staircase was defective, dangerous, improperly repaired in the past, non-code compliant and deteriorated with missing or broken chunks on several different steps. There was no opportunity to take Mr. Tyrell’s deposition because his ability to communicate was seriously compromised while he was lethargic, intubated, in a coma and once his tracheostomy was performed.

The action was tried in Fulton County and the jury rendered its verdict on January 13, 2017 finding that defendant was negligent and awarding pain and suffering damages in the sum of $325,000 (four months).

The defendant appealed challenging the verdict as being unsupported by sufficient evidence, arguing that plaintiff could not establish the cause and location of decedent’s fall and, therefore, any finding of causation would have been improperly based upon speculation. In Tyrell v. Pollak (3d Dept. 2018), the appellate court rejected defendant’s arguments and the verdict was affirmed.

Inside Information:

There was no challenge by either party as to the amount of the damages awarded by the jury.
The building tenant visited by Mr. Tyrell testified that before the accident she had complained at least five times about the condition of the stairs to the defendant’s property manager and called it “a death trap waiting to happen.”
Defendant’s investigator photographed the scene after the accident, including previously repaired steps in the middle (steps six and seven) that had flaked and crumbled. There was blood from the decedent both on those middle steps and at the bottom two steps. The defense position at trial was that Mr. Tyrell fell on one of the bottom two steps. The trial judge called it “outrageous” and incredible when the defense failed to produce the photograph of the bloody, crumbled middle steps and the investigator claimed she had no memory of conducting the investigation.

Appellate Court Affirms Substantial Reduction of Pain and Suffering Damages Award in Worker’s Back Injury Case

By John Hochfelder on August 21, 2018 Posted in Back Injuries

On May 2, 2006, Walter Garcia was injured while working on a renovation project at the Plaza Hotel in Manhattan. Mr. Garcia, then 46 years old, was removing asbestos caulking from windows when he fell about two feet while attempting to climb over a scaffold on the roof.

Plaza Hotel Under Construction

In his ensuing lawsuit against the owner of the building (and, ultimately, others), Garcia was awarded partial summary judgment on the issue of liability and the case then proceeded to a trial on damages. The Suffolk County jurors awarded plaintiff pain and suffering damages in the sum of $4,200,000 ($1,200,000 past – nine years, $3,000,000 future – 23 years); however, in Garcia v. CPS 1 Realty, LP, (2d Dept. 2018), the pain and suffering award has been reduced to $2,000,000 ($750,000 past, $1,250,000 future).

Plaintiff’s injuries appeared at first to be limited to to groin pain and leg numbness and he was diagnosed with an inguinal hernia that was surgically repaired eight months later. About 10 days after the accident, he first sought medical attention for complaints of back pain. Fifteen months later, plaintiff underwent an MRI of his lumbar spine and he was diagnosed with herniated discs leading to spinal fusion surgery at L5-S1 four years after the accident.

Unfortunately, the back surgery failed and plaintiff suffered additional injuries including a foot drop, neurogenic bladder with incontinence and mild reflex sympathetic dystrophy (“RSD”), all causing permanent unrelenting and excruciating pain, leaving him unable to walk without the use of two Lofstrand crutches, requiring extensive narcotic pain relief medication and rendering him permanently disabled from gainful employment.

Lofstrand Crutches

The Workers Compensation Board hired an investigator who surveilled plaintiff on 14 occasions from November 2006 through May 2007. The surveillance tapes were admitted in evidence at the damages trial showing plaintiff standing on his toes to change Christmas lights, raking leaves, kneeling down on a bag of leaves to push the air out and transporting a shop vacuum cleaner and pipe. The defendants argued that the tapes showed a person who was not at all disabled and would not need lumbar fusion surgery (which would not occur until March 2010). They contended that sometime after the activity captured on film, and well over a year after the accident, “something [unrelated to his accident] happened to the plaintiff that led him to seek surgery.”

Plaintiff argued that the video footage actually supported his position that all of his injuries are causally connected to the accident noting that there was not a shred of evidence that he engaged in activities inconsistent with a man with herniated discs in his lumbar spine and that his physicians diagnosed him with an unstable spine that continued to get worse and cause more pain and disability over time.

As set forth on the verdict sheet, the jury also awarded economic damages (undisturbed by the courts) for:

loss of earnings – $1,276,000 ($556,000 past, $720,000 future – 10 years),
loss of annuity – $127,200
loss of social security retirement income – $123,000
past medical expenses – $34,923 (stipulated)
future costs of therapeutic evaluations and care, medical care, medications, aids and homemaker services -$283,150 (23 years)

Inside Information:

Plaintiff commenced his lawsuit in Bronx County but the court ordered a change of venue to Suffolk County because plaintiff resided in Suffolk County at all relevant times. On the summons, plaintiff falsely stated he was a Bronx resident; when he testified at a deposition that he’d always been a resident of Brentwood in Suffolk County, a defense motion to change venue was granted.
In summations, plaintiff’s counsel asked the jury to award pain and suffering damages in the total sum of $5,000,000. Defendants argued that the only injury for which plaintiff should be compensated was the hernia and that it had resolved. They suggested about $50,000 for pain and suffering.
Plaintiff’s orthopedic surgeon testified that the back surgery led to symptoms of RSD but admitted that the RSD had “calmed down” and “was early in the spectrum and had improved.” The defendants’ doctor opined that plaintiff did not have RSD at all.

Substantial Verdict Reductions Ordered in Fatal Car Crash Case

By John Hochfelder on July 31, 2018 Posted in Wrongful Death

On May 1, 2007, at 4 p.m., Jenna Vatalaro, a 19 year old college student, was driving her car westbound on Montauk Highway near its intersection with Atlantic Avenue in the hamlet of Blue Point in Suffolk County when her car was struck by a 35 foot long Suffolk County transit bus. Ms Vatalaro sustained massive injuries and was pronounced dead upon her arrival at the hospital 30 minutes later.

In the ensuing lawsuit, Jenna’s parents claimed that the bus driver crossed over the roadway’s double yellow line and was fully at fault for the crash. A Suffolk County jury agreed and a second jury awarded damages: (a) $250,000 for pre-impact terror, (b) $1,250,000 for pre-death pain and suffering, and (c) $170,000 for economic loss.

In Vatalaro v. County of Suffolk (2d Dept. 2018), the appellate court affirmed the trial judge’s reductions of damages for pre-impact terror to $50,000 and pre-death pain and suffering to $400,000.

Here are the injury details:

incomplete brain stem injury
full thickness facial lacerations
subarachnoid hemorrhage
pronounced dead at hospital after cardiac arrest at scene

Brain Stem Anatomy

The defense contended that there was no basis for any pre-death pain and suffering award because Jenna was unconscious at the scene, did not suffer, and was completely insensitive to any feeling of pain from the moment of impact until her death.

To the contrary, plaintiff’s counsel contended that the jury should award substantial pre-death pain and suffering damages because witnesses (including passersby and medical experts) testified that:

Jenna was trembling inside her car immediately after impact, moved her lips like she was trying to say something, moaned responding to the calling of her name and moved her eyes (albeit underneath her eyelids),
she sustained a severe degree of pain for about 10 minutes,
Jenna had agonal respirations (four per minute) 10 minutes after impact and a pulse rate of about 100 15 minutes after impact, and,
an incomplete brain stem injury explains how Jenna could appear to be unconscious while retaining sufficient consciousness to respond to verbal stimulation by trying to speak, moaning or increasing the movement of her eyes under her lids.

The pre-impact terror award was based upon the bus driver’s testimony that he established eye contact with Jenna for about a second. Plaintiff’s counsel argued that it was likely Jenna saw the bus bearing down upon her for longer than a second causing her to fear that death (or a grave injury) was imminent; whereas the defense argued that there was no action or indicia of Jenna’s awareness of an imminent impact with the bus.

Inside Information:

Although Jenna’s parents would not allow an autopsy to be conducted, there was an external post-mortem examination (by defendant’s expert pathologist) that allowed the competing medical experts to opine on matters such as the periods of time Jenna was conscious and whether and for how long she experienced any pain.
The defense medical expert, a retired pathologist, had been employed by the County of Suffolk at the time of the accident and was the one who preformed the post-mortem examination.
The jury also awarded $170,000 for the monetary loss sustained by Jenna’s parents – i.e., a portion of the income she would have earned as well as the loss of her household services. Plaintiff sought an increase in this aspect of the verdict but both the trial judge and the appellate court agreed that the amount was reasonable.

Verdict Affirmed in Mall Parking Lot Death Case

By John Hochfelder on July 5, 2018 Posted in Wrongful Death

On June 29, 2005, Concetta Russo-Carriero, a 56 year old paralegal, was abducted, stabbed twice with a knife and murdered in the parking garage of a White Plains shopping mall.

The murder took place on the 7th floor of this parking lot at the Galleria Mall.

The perpetrator, 43 year old Phillip Grant, was a convicted rapist who’d already spent 25 years in prison. He specifically selected the garage to commit his crime because of its lax security and spent two hours there lurking around and looking for someone whose car he could hijack and drive to Connecticut.

In 2007, Ms. Russo-Carriero’s executors commenced a wrongful death lawsuit against the City of White Plains (the owner and operator of the garage).

Following the trial in 2014, the Westchester County jurors determined that the city was at fault finding that (a) the incident was foreseeable, (b) the city failed to provide minimal precautionary measures to secure the garage, and, (c) the city’s negligence was a substantial factor in causing the death.

The jury also found that the criminal conduct of the murderer (who was caught quickly, confessed, convicted and sent to jail for 25 years to life) was not a substantial factor in causing Ms. Russo-Carriero’s death. Here is the jury charge in which the trial judge explained to the jurors the foreseeability of criminal conduct, lack of security and apportionment of fault issues.

Pain and suffering damages, as set forth in the verdict sheet, were assessed as follows:

from the moment Ms. Russo-Carriero realized she was going to be gravely injured or die and the moment she sustained a physical injury – $1,000,000
from the moment of physical injury to the moment of death – $500,000

The defendant appealed arguing that the case should have been dismissed on the basis of governmental immunity because its implementation of security measures at the garage involved the discretionary allocation of police resources. Furthermore, the city argued that it did not breach its duty to provide adequate security. Finally, the city argued that the jury was wrong in failing to assign any portion of the fault to the perpetrator of the attack (who was not named as a defendant in the civil suit) and that there was no evidentiary basis for the award of $500,000 for conscious pain and suffering (for the period after the stabbing).

In Granata v. City of White Plains (2d Dept. 2018), the appellate court rejected all of defendant’s arguments except the one regarding apportionment of fault (which it modified – assigning 35% to the murderer, reducing defendant’s share to 65%).

In affirming the $500,000 award for the pain and suffering Ms. Russo-Carriero sustained after she was stabbed, the court stated that there was enough circumstantial evidence that she experienced some level of cognitive awareness after the stabbing. Here are the physical injury details:

a witness heard terrified screams
decedent’s belongings were strewn about indicating a struggle after she was stabbed
there was blood on the ground far enough away from the location of the stabbing indicating that she was stabbed in one place in the garage and then engaged in a struggle before ultimately dying in a different location in the garage
a passerby found Ms. Russo-Carriero on the ground bleeding and he saw her eyes moving
a police officer testified that Ms. Carriero had a pulse and was breathing as she lay dying on the garage floor and that her lips moved in response to his attempt to question her about what happened

The pre-injury pain and suffering award of $1,000,000 was not challenged as there was evidence (from the perpetrator’s confession) that Ms. Russo-Carreiro was slowly walked at knife-point for about 260 feet in the garage and that she initially knocked the knife away prior to being stabbed.

Inside Information:

The jury also awarded wrongful death damages to decedent’s husband ($155,000) and her two children ($310,000).
The murderer confessed to police that he planned that day to kill a white person and he was the first person to be tried and convicted for murder as a hate crime in Westchester County.
In 2007, New York enacted the Sex Offender Management and Treatment Act.

Infant’s Medical Malpractice Pain and Suffering Award Slashed

By John Hochfelder on May 21, 2018 Posted in Medical Malpractice

On February 23, 2009, at Mercy Medical Center in Rockville Centre, Nylah Hollingsworth was born prematurely at 26 1/2 weeks of gestation.

Two weeks later,Nylah was diagnosed with necrotizing enterocolitis (NEC), an acute infection of the intestine sometimes seen in premature infants.

Nylah’s mother sued the hospital claiming that it negligently caused NEC. On September 30, 2014, a Queens County jury returned a verdict finding that the hospital was negligent by failing to obtain a surgical consult or transfer Nylah to another hospital upon diagnosing her with NEC. Then, the jury awarded pain and suffering damages in the sum of $5,000,000 ($1,000,000 past – five and a half years, $4,000,0000 future – 75 years).

In Hollingsworth v. Mercy Medical Center (2d Dept. 2018), the appellate court affirmed the liability finding against the hospital and the trial judge’s reduction of the pain and suffering award to $575,000 ($75,000 past, $500,000 future).

As set forth in the appellate court decision, the jury found that the defendant was responsible only for the delay in obtaining a surgical consult and transferring Nylah to another hospital, not for causing the NEC itself.

Here are the injury and course of treatment details:

Born weighing only 2 pounds 3 ounces, Nylah was stabilized in the delivery room and transferred to the neonatal intensive care unit where she was provided antibiotics, fluids and respiratory support
Started on total parental nutrition the day after birth, then breast feeding by March 6th
Upon a significant increase in abdominal girth and spewing formula and polyvisol, Nylah was diagnosed with Stage II NEC on March 9th and a surgical abdomen on March 10th
Grossly bloody stool on March 10th; intubated and placed on mechanical ventilator
Lung collapse on March 12th; bowel sounds absent
Abdominal girth continues to rise and abdomen remains distended through March 15th when transferred to Long Island Jewish Medical Center (LIJ) for definitive treatment (where she remained hospitalized for 166 days, until August 27th
Surgery on March 16th to place Penrose drain in abdomen to drain ascites
Surgery on May 5th – exploratory laparotomy and ileocolic resection in which approximately 14 inches of bowel was removed and an ileostomy was created (that was subsequently removed on September 2nd)
Transferred from LIJ to Columbia Presbyterian Medical Center in Manhattan where she remained until September 21st
Continuing short bowel syndrome secondary to NEC with frequent diarrhea, loose stools and frequent stomach pain

Jury Verdict Declining to Award Any Pain and Suffering Damages Upheld in Car Accident Case

By John Hochfelder on May 17, 2018 Posted in Back Injuries, Neck Injuries

On December 17, 2011, Ebony Stanford was a rear seat passenger in a taxicab that was involved in a crash with another vehicle in Manhattan on the FDR Drive near the 53rd Street exit.

Ms. Stanford, then a 33 year old security officer at Harlem Hospital residing in the Bronx, sued both drivers seeking an award of pain and suffering damages for injuries to her cervical and lumbar spine.

In 2015, plaintiff’s motion for summary judgment was granted on the issue of serious injury based upon the so-called 90/180 category under Insurance Law Section 5102. Accordingly, at the trial in 2016, the jury was instructed that “the court has already determined that plaintiff sustained a non-permanent medically determined injury that prevented [her] from performing her usual and customary activities for 90 out of the 180 days immediately after the accident.”

The Bronx jury returned a verdict finding the two drivers negligent, apportioning their respective shares of fault and awarding plaintiff $14,400 for her past loss of earnings.

The jury awarded nothing at all for plaintiff’s pain and suffering, a determination that was upheld on appeal in Stanford v. Rideway Corp. (1st Dept. 2018).

As indicated in the appellate court decision, the trial judge found that “plaintiff’s evidence was not compelling” and the jury found that plaintiff did not sustain either (a) a permanent consequential limitation of use of a body organ or member, or (b) a significant limitation of use of a body function or system (two of the serious injury criteria under the statute).

Both plaintiff’s pre-trial motion for summary judgment as to the 90/180 category and the jury’s award of damages for plaintiff’s wage loss were based on plaintiff’s claim that she was entirely unable to work for about four and a half months immediately following the accident.

Here are the injury details:

immediate back and neck pain from whiplash
ambulance transport to hospital on stretcher with neck brace; treated and released to home after five hours
bulging discs at L4-5 and L5-S1
three spinal manipulations under anesthesia
chiropractic and physical therapy treatment at an outpatient rehabilitation facility for the next four months
continuing pain leaving plaintiff unable to lift her six year old daughter, carry heavy groceries or walk fast

The defendants argued that the disc bulges were minimal and degenerative and that there was no evidence of any traumatic injury to the cervical spine. Furthermore, the defendants’ expert orthopedic surgeon (a) diagnosed plaintiff with morbid obesity (she was 5 feet 4 inches tall and weighed 230 pounds at the time) and (b) examined plaintiff and opined that her neck and back were normal and she had no related disabilities.

Plaintiff’s treating orthopedic surgeon opined before trial that she had significant range of motion limitations and permanent lumbar and cervical spine injuries; however, her chiropractor was the only health care provider who testified at trial for her and the jury rejected plaintiff’s position that her injuries met the significant limitation and permanent consequential limitation categories under the statute.

Clearly, this was a case of battling experts and the jurors chose the one they found credible.

Appellate Court Addresses Liability and Damages in Slip and Fall Ankle Injury Case

By John Hochfelder on May 10, 2018 Posted in Ankle Injuries

On February 9, 2004 at about 9:30 a.m., Lillian Robinson parked her car across the street from her home on Van Buren Street in Brooklyn and was walking around the back of her car so she could cross the street. After taking one or two steps off the curb, she fell and was injured.

In her ensuing lawsuit, Ms. Robinson, then 64 years old, claimed that she fell because of a pothole in which snow and ice had accumulated and that the City of New York was negligent because it dug a hole that created the pothole years earlier and left it in a dangerous condition. The jurors agreed but they also found plaintiff substantially at fault (for not paying proper attention) and they apportioned liability 80% to plaintiff and 20% to defendant. They also awarded pain and suffering damages (before apportionment) in the sum of $150,000 (all past – seven and a half years).

Plaintiff appealed arguing that that the liability apportionment was against the weight of the evidence and that the damages award was inadequate.

In Robinson v. Brooklyn Union Gas Co. (2d Dept. 2018), the appellate court modified the liability split, assigning 55% to plaintiff and 45% to defendant. The court declined to increase the damages award, concluding that the jury’s verdict awarding zero damages for future pain and suffering was not contrary to the weight of the credible evidence.

Here are the injury details:

comminuted displaced fractures of the tibia and fibula bones in left ankle
open reduction internal fixation surgery with insertion of intramedullary nail and four screws
confined to hospital for one month, then transferred to a long term facility for four more months confined to wheelchair

Plaintiff’s expert orthopedic surgeon testified that her fractures had healed but that she (a) has permanent swelling, weakness, pain and tenderness, (b) has permanent loss of range of motion and (c) walks with a limp. Defendant’s expert countered that plaintiff’s bones had healed well and were solid and she has no limp or difficulty walking or standing.

Inside Information:

Upon her return home from the rehabilitation center, Ms. Robinson returned to her job as a minister but claimed at trial that due to her injury and pain she had to lean or sit to preach. The defense, though, introduced photographs and videos of plaintiff preaching in 2010 and 2011, in which she was standing and walking about and argued that the discrepancy between this evidence and plaintiff’s trial testimony asserting the contrary provided a strong basis for the jury’s declining to credit plaintiff’s claims of ongoing pain or disability.
Liability was sharply contested with plaintiff and a witness testifying that a year or two before the accident they saw workers digging holes in the street where she fell (that plaintiff claimed were then improperly or inadequately filled with asphalt); whereas the defendant claimed that plaintiff jaywalked across the middle of the block on a street with known depressions and ice but failed to look down as she did so.