On August 10, 2012, Audrey Appleyard underwent arthroscopic surgery to repair a torn meniscus in her knee. The surgery was performed properly and uneventfully and Ms. Appleyard, then 59 years old, was discharged home that evening. A week later, though, she presented to the emergency rom at Vassar Brothers Hospital in Poughkeepsie complaining of pain, redness and purulent drainage from her surgical site.

She was diagnosed with a post-operative infection (later determined to be Methicillin-resistant Staphylococcus aureus, known as MRSA), admitted and treated with Vancomycin, a powerful antibiotic with significant potential for toxicity.

Unfortunately, while still admitted, Ms. Appleyard developed kidney damage that she claimed was due to improper monitoring and failing to immediately act on abnormal bloodwork on August 26, 2012.

In the ensuing medical malpractice lawsuit against her infectious disease doctor and a physician’s assistant for her orthopedic surgeon, the jury upheld plaintiff’s claim finding that the physician’s assistant was responsible for the delayed treatment following receipt of the results of the blood tests he ordered.

The jury awarded plaintiff pain and suffering damages in the sum of $3,000,000 (all past – seven weeks).

In Appleyard v. Tigges (1st Dept. 2023), the appellate court affirmed the liability verdict but reduced the pain and suffering damages award to $500,000.

Here are the injury details:

  • acute kidney failure
  • dialysis – which required the insertion of a large catheter line into her neck – for three straight days
  • additional five days in hospital with blood transfusions
  • emotional shock, fear of permanent kidney damage and fear of imminent death

Defendants argued that the damages award was “utterly excessive” and “astounding” in view of the conceded facts that plaintiff’s kidney function resumed after the three dialysis sessions and that her kidney function returned to normal within three months of her hospital admission.

Inside Information:

  • In his closing argument, plaintiff’s attorney asked the jury to award $3,000,000 and they did just that.
  • Before trial, plaintiff settled with Vassar Brothers Hospital and its corporate owner for the sum of $225,000.
  • Before the case was submitted to the jury, plaintiff withdrew her claim that she’d suffered permanent renal injury and the agreed-upon verdict sheet asked the jury to award pain and suffering damages, if any, only for the seven week period until she was advised her kidney function had returned to normal.

On April 30, 2016, Gabriel Suarez sustained a hip injury when he tripped and fell over a roadway speed bump while running on Roosevelt Avenue, a private road in Southampton, near where he’d recently bought a weekend home.

Mr. Suarez, then a 49 year old Manhattan resident, sued the adjoining homeowners claiming that they failed to maintain the road in front of their home in a safe manner.

The Manhattan jury determined that both parties were at fault for the accident – defendants 40% and plaintiff 60% and they assessed pain and suffering damages in the sum of $250,000 ($50,000 past – five years, $200,000 future – 24 years). They also added $37,500 to the award representing the stipulated cost of future surgery. The total $287,500 award to plaintiff was reduced to $115,000 after applying the percentages of comparative fault.

In a post-trial motion, plaintiff argued that the jurors were confused about the apportionment process and that they intended plaintiff should received $287,500 instead of only 40% of that amount. Plaintiff also argued that even the full $250,000 for pain and suffering damages would represent an inadequate amount. The trial judge granted the motion to the extent that he ordered a new trial on the issue of damages.

Defendants appealed and in Suarez v. Ades (1st Dept 2023), the appellate court reversed the trial judge’s order and directed that judgment be entered in conformity with the verdict sheet and stipulated medical expenses.

Plaintiff sustained a comminuted fracture of his acetabulum requiring open reduction internal fixation surgery with a plate, screws and bone grafting. His medical expert opined that the injury is permanent and he has a high probability of needing future hip replacement surgery.

The defendants’ experts opined that plaintiff’s injuries had resolved prior to trial and the jury was shown video and still photographs of plaintiff paddle boarding and windsurfing. The appellate judges noted that plaintiff admitted he was able to run and engage in whatever activities he wanted since 2016.

On June 27, 2018, Phyllis Streit injured her shoulder when she tripped over partially obstructed chicken wire connected to a downed fence while walking to work from her apartment complex in Lake Katrine in Ulster County.

Ms. Streit, then 61 years old, was attempting to climb over a broken section of fence in a grassy area behind the complex’s parking lot when her foot became caught and she fell. She sued the apartment complex owner claiming that the premises was unreasonably dangerous. The jurors agreed but they apportioned fault 70% to the defendant and 30% to the plaintiff.

The jury then assessed pain and suffering damages in the sum of $750,000 ($100,000 past – three years, $650,000 future – 25 years).

In Streit v. Katrine Apts. Assoc., Inc., (3d Dept. 2023), the appellate court affirmed both the liability and damages verdicts.

Here are the injury details:

  • fractured proximal humerus requiring open reduction internal fixation surgery with 10 screws
  • reverse shoulder arthroplasty
  • continuing and permanent pain, significant limitations of range of motion and extensive limitations as to many aspects of daily living (the injury is to plaintiff’s dominant arm)

Inside Information:

  • Plaintiff sustained an injury to her same shoulder as a result of a fall six months before the present matter but she had not sustained any fractures and did not undergo surgery and claimed she was asymptomatic shortly thereafter
  • In his summation, plaintiff’s counsel conceded that she was negligent but argued that defendant was much more at fault.

On June 18, 2015, Gwendolyn Williams was passenger in a vehicle operated by Patrick Ncho who ran a stop sign and was struck by another vehicle.

Ms. Williams, then 38 years old, sustained injuries and was transported to the local hospital with complaints of pain in her neck, back, right knee and right shoulder. She was treated for soft tissue injuries and released the same day.

In her ensuing Kings County lawsuit against both drivers, the jury rendered a verdict finding that Mr. Ncho was fully at fault. A damages only trial followed in which the jury awarded plaintiff pain and suffering damages in the sum of $100,000 ($25,000 past – four and a half years, $75,000 future -10 years).

The jury found that the so-called serious injury threshold (Insurance Law Section 5102) had been met as to plaintiff’s right knee injury because she was prevented from performing substantially all of the material acts that constituted her usual and customary activities for not less than 90 days during the 180 days immediately following the accident.

Normal Knee Anatomy

Defendant moved to set aside the verdict arguing that the evidence was insufficient to meet the threshold. The trial judge agreed and dismissed the case.

Plaintiff appealed. In Williams v. Ncho, (2d Dept. 2023) the appellate court reinstated the jury’s verdict.

Here are the injury details:

  • torn medial meniscus in knee requiring arthroscopic surgery on 9/10/15 (84 days post-accident) in which the meniscus and some irregularity on the kneecap were trimmed
  • unable to perform daily activities as to her three year old daughter (plaintiff was a stay-at-home single mother) including an inability to play with her, pick her up, or bathe her because of painful limitations
  • pre-operative use of anti-inflammatories, physical therapy and an injection
  • post-operative pain and loss of range of motion

Inside Information:

  • The verdict sheet specifically listed each of plaintiff’s claimed injuries and the jury rejected them all except for the right knee.
  • Plaintiff’s daughter was also injured in the accident and she settled her claim before the damages trial for $9,000.

On March 26, 2015, Salih Karasu, a 40 year old commercial roofing mechanic, was injured when he fell from a ladder about nine feet in the air, landing on and badly fracturing his ankle. He’d been working that day at Security Auto Sales in Amityville.

The Site of the Accident

Mr. Karasu sued the owners of the premises where he fell and, after discovery, he was granted summary judgment as to liability under Labor Law Section 240(1). The matter then proceeded to a trial on damages only.

The Nassau County jury awarded plaintiff pain and suffering damages in the sum of $2,000,000 ($1,000,000 past – seven years, $1,000,000 future – 10 years).

The jury also awarded future economic damages as follows:

  • Medical and Physical Therapy Expenses – $1,500,000 (14 years)
  • Lost Earnings – $892,424 (10 years)
  • Social Security Retirement benefits – $277,318 (14 years)

Together with $125,000 loss of services/consortium damages to plaintiff’s wife, the total jury award was $5,130,137.

Defendants argued that the evidence was insufficient to support the future economic damages awards. In Karasu v. Security Auto Sales, Inc. (Supreme Court, Nassau County, 2022), the trial judge agreed noting that the testimony as to future medical expenses and physical therapy was speculative at best and that plaintiff had already stopped seeing his doctor or going to physical therapy. Furthermore, plaintiff had returned to work earning more than he had before the accident.

The judge ordered future economic damages reductions in the sum of $2,357,106 as follows:

  • medical expenses and physical therapy, from $1,500,000 to $137,200
  • lost earnings, from $892,424 to $133,838 and
  • Social Security retirement benefits, from $277,318 to $41,598

Defendants also argued that the pain and suffering award was excessive but the judge upheld the $2,000,000 pain and suffering damages award.

Here are the injury details:

  • right ankle pilon fracture requiring external fixator for three weeks followed by open reduction internal fixation surgery with hardware insertion and, two years later, surgery to remove the hardware
  • unable to weight bear for nine months
  • unable to return to work for two years
  • continuing pain for which ankle fusion surgery was recommended

On May 25, 2016, Adedute Gbadehan, a 45 year old physician, was a passenger in a livery cab in the Bronx when it collided with an SUV driven by Jazmin Williams. Both vehicles proceeded into the intersection at 159th Street and Elton Avenue that was controlled by stop signs for each.

Dr. Gbadehan was taken by ambulance to a local hospital where he complained of a headache and right shoulder pain. He was treated and released that day.

Dr. Gbadehan sued both drivers and on 2/5/20 a Bronx jury rendered a verdict in his favor (a) finding that that Ms. Williams was totally at fault and (b) awarding pain and suffering damages in the sum of $400,000 ($100,000 past – four years, future- 29 years).

Although he initially complained of right shoulder pain, Dr. Gbadehan ultimately presented his case on damages focusing only on his left shoulder. After his ER visit, plaintiff sought no medical treatment for three months. Then, months later, he complained of left shoulder pain and consulted an orthopedic surgeon who found that plaintiff had sustained traumatic left shoulder injuries in the car crash including a tear of the rotator cuff and an extensive superior labral (SLAP) tear.

On 6/6/18, Plaintiff underwent arthroscopic surgery to repair the tears with the insertion of two screws. His treating surgeon testified that he still has pain and limited motion and may need future medical treatment including surgery to remove the screws.

The defendant moved to set aside the verdict for several reasons including her claim that the future pain and suffering damages award is excessive. The trial judge did not address that claim; instead, he ordered that the entire verdict should be set aside and a new trial held because testimony was elicited from defendant in which Geico was disclosed as her liability insurance carrier.

In Gbadehan v. Williams (1st Dept. 2022), the appellate court agreed with the plaintiff that the post-trial motion should have been denied noting that the reference to liability insurance was merely in passing and defense counsel failed to object at the time.

The appellate court declined to consider the argument that the future pain and suffering award is excessive. It’s been five months since the appellate court decision but the trial court has not yet ruled upon those parts of the post-trial motion, such as the excessiveness of damages claim, that the trial judge did not rule upon (because he vacated the entire verdict).

Inside Information:

  • During trial, plaintiff rejected a settlement offer of $65,000.
  • In his closing argument, plaintiff’s attorney asked the jury to award $8,000,000 for pain and suffering damages.
  • In January 2022, while this appeal was pending, a retrial on both liability and damages was held. The jury rendered a verdict for plaintiff in the sum of $20,000.

On October 3, 2014, James Blair was injured when the vehicle he was driving was struck by a city bus at an intersection in Queens. It was a heavy impact crash.

In the ensuing lawsuit against the other driver and the city transit authority, the parties disputed which one had the green light. The jury found against the bus driver and ruled that the defendants were fully at fault for causing the accident. Then, the jury awarded plaintiff pain and suffering damages in the sum of $1,140,000 ($300,000 past – three years, $840,000 future – 24 years).

The defendants appealed arguing that the liability verdict was contrary to the weight of the evidence and, alternatively, that the future pain and suffering damages award was excessive.

In Blair v. Coleman (2d Dept. 2022), the appellate court agreed with the defendants and (a) remanded the case back to the trial court for a new trial on the issue of liability and (b) ordered that if liability is found in the new trial, the award for future pain and suffering damages should be reduced to $500,000.

Here are the injury details:

  • Foot – fractures of first and second metatarsals with Lisfranc fracture dislocation requiring open reduction internal fixation surgery with six screws and a metal plate
  • Back – fracture of L-1 transverse process
  • Sternum, clavicle and rib fractures
  • Admitted to hospital for 12 days, then to a rehabilitation facility for 10 months

Plaintiff was 51 years old, 330 pounds and unemployed at the time of the accident. He claimed at trial that he can no longer walk without a limp and requires a cane. His medical expert testified that he will likely develop arthritis in his foot and may need further surgery (but there was no claim for future medical expenses).

The defense noted that plaintiff had many physical problems before the accident including asthma, bronchitis, sleep apnea, high blood pressure and arthritis in his knees. He had been taking pain medication for his knees, legs and back and admitted that before the accident he had all kinds of pain, some problems walking, sometimes used a cane and had gone to a hospital emergency room one year before the accident complaining of severe swelling in his knee.

Inside Information:

  • Plaintiff had demanded $750,000 to settle the case; defendants’ offer was $150,000.
  • In summations, plaintiff’s attorney asked the jury to award $300,000 for past pain and suffering and $480,000 for the future; defense counsel suggested a total of $100,000.

On June 24, 2014, Nelly Lara was injured when the car she was  driving was hit in the rear while she was stopped at a red light at the intersection of 51st Avenue and Corona Avenue in Queens.

Ms. Lara, a 67 year old retired hairdresser, obtained an order granting summary judgment as to full liability against the other driver and owner. The matter then proceeded to a trial on damages only.

The jury awarded plaintiff pain and suffering damages in the sum of $50,000 ($10,000 past – four years, $40,000 future – 15 years). Plaintiff appealed claiming that the award was inadequate and should be increased to $3,000,000.

In Lara v. Arevalo (2d Dept. 2022), the pain and suffering damages award was increased on appeal to $125,000 ($50,000 past, $75,000 future).

Here are the injuries that plaintiff claimed were caused by the accident:

  • Knee – torn meniscus requiring arthroscopic partial meniscectomy and partial synovectomy
  • Shoulder – rotator cuff and glenoid labrum tears and impingement requiring arthroscopic surgery
  • Neck -herniated disc that required cervical discectomy and fusion surgery on 10/7/16

Plaintiff claimed she’d need substantial medical treatment in the future, based on a life care plan testified to by her expert. The jury disagreed and awarded only $15,000 for future medical expenses.

The defense argued that the accident was a minor fender-bender with little vehicle damage that could not have caused any of the claimed injuries. Furthermore, their medical expert contended that any injuries plaintiff did sustain were the result of pre-existing conditions such as arthritis and degeneration. Finally, they noted that the doctor treating plaintiff for her neck pain discharged her after nine months because her neck pain was “gone” and she did not seek any further neck treatment for more than a year thereafter.

Plaintiff had no prior symptoms and her testifying physicians stated that all of the claimed injuries and treatment were caused by the accident, which left her with permanent range of motion losses, pain and partial disabilities as to daily activities.

Inside Information:

  • The defendant driver did not attend the trial having moved to Texas after the accident; his pre-trial deposition transcript was read to the jury.
  • In his summation, plaintiff’s attorney asked the jury to award $3,500,000 for pain and  suffering; defense counsel suggested $20,000.

On April 12, 2011, Galo Guaman was working at a construction site at One Whitehall Street in Manhattan, He was using a crowbar to remove a door frame when he was injured.

One Whitehall Street, NYC

Mr. Guaman sued the budling owner and construction manager claiming that their violations of Labor Law Sections 200, 240(1) and 241(6) caused his injuries. The jury agreed and then awarded plaintiff pain and suffering damages in the sum of $200,000 (all past – eight years).

Plaintiff appealed arguing that the damages award was inadequate. In Guaman v. One Whitehall, L.P. (2d Dept. 2022), the verdict was affirmed.

Plaintiff claimed that in his accident a cinder block hit him on his shoulder and that as a result he sustained extensive and multiple injuries including:

  • Hand – crush injury to third finger with lacerations and a comminuted distal phalanx fracture requiring surgery to repair on 4/12/11; treated and released from emergency room on night of accident; a few months of follow-up treatment
  • Shoulder – impingement syndrome requiring arthroscopic surgeries in 2013 and 2015; permanent pain and restrictions of range of motion
  • Spine – herniated disc at L5-S1 requiring decompressive laminectomy and partial discectomy on 10/27/15; permanent pain and restrictions of range of motion

On November 19, 2011, seven months after his construction site accident, plaintiff fell down 10 stairs at his home and sustained several injuries, including a skull fracture and subdural hematoma, requiring emergency hospital admission for 17 days. Plaintiff had no recall of the stairway fall but argued that it was part of this case because he was dizzy from the earlier accident.

The defense noted that (a) plaintiff’s only complaint at the hospital for his first accident was related to his hand, (b) the hospital record states he was cut by metal at work and makes no mention of the cinder block and (c) any injuries to body parts other than his hand are unrelated to the construction site accident. Plaintiff countered that he had indeed injured his spine and shoulder in the first accident and that those injuries were not in the hospital record either because of a language barrier (he is Spanish speaking) or because he was in shock and worried he’d lose his finger. And, he points to the fact that he did mention these other injuries  to a physician a few weeks later.

Apparently agreeing with the defense, the jury awarded nothing at all for future pain and suffering or future medical expenses despite the fact that plaintiff’s pain and disabilities related to his back and shoulder were ongoing and that an expert testified they are permanent and plaintiff (40 years old at trial) will need more surgery and incur substantial future medical expenses in the sum of $1,700,000 over his lifetime.

Inside Information:

  • In his summation, plaintiff’s attorney asked the jury to award pain and suffering damages in the sum of $11,500,000. Defense counsel said: “… this case starts and ends in the emergency room at New York Downtown Hospital on the evening of April 12, 2011. Anything else that’s claimed, I submit to you, has no bearing on my clients’ liability. None.”
  • Plaintiff claimed he could no longer work but he made no claim for loss of earnings.

 

On June 1, 2012, Deborah Ormond was injured when she tripped over a raised and uneven piece of sidewalk next to a metal subway grate in front of 390 Lafayette Avenue in Brooklyn.

Ms. Ormond successfully sued the city transit authority claiming that defendant was negligent in the maintenance of the sidewalk. The jury awarded plaintiff pain and suffering damages in the sum of $2,900,000 ($1,300,000 past – seven years, $1,600,000 future – 10 years).

The defendant appealed arguing that (a) the trial judge improperly instructed the jury as to the application of a city code applicable to the differences in elevation between adjacent sidewalk flags (as opposed to a grating), (b) the jury should have apportioned some fault to plaintiff and (c) the damages award was excessive.

In Ormond v. MTA/New York City Transit Authority (2d Dept. 2022), the liability verdict was affirmed but the appellate court agreed that the damages award was excessive and the panel ordered that the pain and suffering award should be reduced to $1,700,000 ($1,000,000 past, $700,000 future).

The decision does not include any information as to the plaintiff’s injuries. Here are the injury details:

  • torn meniscus in both knees with constant pain
  • herniated cervical and lumbar discs in spine with daily pain
  • unable to resume recreational sports activities and needs cane to go up and down the 25 stairs to her second floor apartment

Plaintiff, 54 years old at the time of her accident, underwent extensive treatment to her knees and both parts of her spine that consisted of physical therapy, chiropractic treatment, five epidural steroid injections and pain management. Her orthopedic surgeon concluded that she would require bilateral total knee replacement surgeries. As of the trial date, though, plaintiff had not undergone any surgery at all.

The defense orthopedic expert opined that plaintiff’s two meniscal tears were not related to her fall and that her spinal complaints were related to degeneration not trauma. In arguing for a significant reduction of the jury’s award, defendant highlighted both the fact that plaintiff never had surgery  (“if the pain had been bad enough, a surgeon would have performed the surgery”) and that plaintiff missed only one day of work because of her injuries.

The jury also awarded plaintiff $160,000 for future medical expenses which is the amount her expert physician estimated for the total knee replacement surgeries. The defendant did not challenge this award.

Inside Information:

  • While the appellate court ordered a significant reduction of the jury’s pain and suffering award, the final amount – $1,700,000 – is at the high end for a case like this with no surgery. The firm of Burns & Harris has once again achieved an outstanding result.