On May 14, 2013, Susan Montefusco injured her ankle when she stepped into a hole in the grassy median next to the parking lot at her apartment complex in Patchogue.

Scene of the Accident – Rider Avenue Apartment Complex

She sued the owner of the premises and, following a bench trial, the defendant was found to be fully at fault. The judge then awarded plaintiff pain and suffering damages in the sum of $285,000 ($200,000 past – four and a half years, $85,000 future – 16 years).

In Montefusco v. Main Street L.I., LLC (2d Dept. 2021), the appellate court affirmed both the liability verdict and the damages award.

Here are the injury details:

  • trimalleolar fracture of ankle

  • two closed reductions in emergency room; open reduction internal fixation surgery one week later with placement of plate and screws
  • 10 days in hospital followed by three weeks inpatient at rehabilitation facility
  • some continuing pain

The defense argued that plaintiff made a full recovery with no limitations or restrictions of any kind, other than mild aches and therefore there was no basis for an award of future pain and suffering. Plaintiff, 64 years old at the time of her accident, last received treatment for her injury four years before trial when her doctor cleared her for full use of her leg. At trial, she testified that she had occasional pain and discomfort, playing with her grandchildren was painful, she is careful when climbing and walking and her ability to do household chores has been reduced.

Inside Information:

  • Plaintiff’s husband asserted a claim for loss of consortium. The judge declined to make any award to him because “he did not testify to the type of effect upon his relationship with his wife that would amount to a loss of consortium.”
  • The defendant’s insurance carrier disclaimed coverage based upon alleged misrepresentations in the application for insurance. The disclaimer was successfully challenged by defense counsel, Franklin McRoberts of Farrell Fritz, who prevailed upon an appellate court to order that coverage be afforded.
  • Plaintiff was also awarded $8,600 for unreimbursed medical expenses and $1,400 for a Medicare lien.

On December 29, 2013, Angelina Register was asleep in her apartment at 1265 Morrison Avenue in the Bronx when leaky pipes caused ceiling plaster to fall on her. When she got out of bed, she injured her back and ankle when she slipped and fell on water and the debris that had fallen from the ceiling.

Ceiling Leaks Can Be Dangerous

In Ms. Register’s ensuing lawsuit against the owners and manager of the apartment building, the jury determined that the defendants should have corrected the dangerous ceiling condition and thus were fully at fault. The jury then awarded pain and suffering damages in the sum of $7,000,000 ($1,000,000 past – five and a half years, $6,000,000 future – 40 years). In Register v. SAS Morrison LLC (1st Dept. 2020), the appellate court reduced the pain and suffering damages award to $3,000,000 ($1,000,000 past, $2,000,000 future).

Here are the injury details:

  • emergency room treatment two weeks after accident complaining of back and ankle pain; treated and released; no additional treatment for six more weeks
  • extensive chiropractic treatment and more than 20 spinal injections
  • herniated discs at L4-5 and L5-S1 with radiculopathy and disc desiccation requiring two-day spinal fusion with laminectomy surgery in November 2017
  • partially torn Achilles tendon in ankle
  • continuing spinal and ankle pain, limited ranges of motion and inability to play with kids, dance or do chores

Plaintiff, 36 years old at the time of her accident, claimed she would need extensive future medical treatment including, according to her  expert physiatrist, $2,890,000 for medications, $1,011,000 for injections and $1,607,000 for surgeries. The jury awarded $7,000,000 for future medical expenses; the appellate court reduced the future medical expenses award to $2,644,513 finding that there was inadequate support for some services and that other estimated expenses were inflated.

Inside Information:

  • The defense suggested that plaintiff’s failure to seek medical attention for two weeks indicated she was not severely injured; furthermore, they disputed whether she complained of low back pain in the emergency room (the hospital record was unclear). In summation, defense counsel suggested that the back injury was not related to the accident.
  • About three weeks before the appellate court’s decision, the parties entered into a so-called high-low agreement which provided, among other things, for  future pain and suffering and future medical expenses parameters of $2,500,000 and $5,000,000 in each category. Plaintiff’s total recovery amounted to $8,900,000 which is $1,500,000 more than she would have recovered pursuant to the court’s decision. This is an outstanding result obtained by plaintiff’s counsel, Seth A. Harris, Esq. of Burns & Harris.

On April 14, 2009, Robert McCullough was working as an ironworker at the One Bryant Park, Manhattan construction site when he tripped and fell after stepping into an uncovered drain hole. He claimed serious ankle injuries and sued the owner and general contractor claiming that their violations of the Labor Law caused his injuries.

One Bryant Park Under Construction

A Manhattan jury determined that the defendants were at fault and awarded plaintiff pain and suffering damages in the sum of $1,750,000 ($1,000,000 past – eight years, $750,000 future – 25 years). Defendants appealed, arguing, among other things, that the damages awards were excessive.

In McCullough v. One Bryant Park  (1st Dept. 2020), the court affirmed both the liability verdict and the pain and suffering damages awards.

Here are the injury details:

  • anterior talofibular ligaments torn (a) completely in right ankle and (b) partially in left ankle

  • right ankle surgery #1 on 12/21/09 – modified Brostrom procedure to repair ligament
  • right ankle open surgery #2 on 10/10/11 – sutured ligament, motorized chondroplasty
  • never ending and worsening right ankle pain and instability, eventually (after surgery) diagnosed as permanent and progressive reflex sympathy dystrophy (now better known as complex regional pain syndrome) and progressive and debilitating arthritis
  • unable to work or even stand more than 15 minutes without pain, swelling and intense burning sensations

Plaintiff was also awarded loss of earnings damages of approximately $2,000,000 ($700,000 past, $1,300,000 future) and future medical expenses in the sum of $99,000.

Plaintiff, then 45 years old, presented to the on-site medical clinic on the day of the accident where he was treated with an ice pack and ace bandages. His first medical treatment thereafter was with a podiatrist a month later. He followed up with the podiatrist, took prescribed pain medications and underwent physical therapy while continuing to work (in pain) until 9/25/09 (shortly before his first surgery).

Inside Information:

  • The jury found that plaintiff was 5% comparatively at fault for his accident.
  • Plaintiff adduced testimony from his treating podiatrist and orthopedic surgeon; the defense had plaintiff examined by two physicians before trial but adduced testimony only from an expert radiologist.
  • Plaintiff has an undergraduate degree in physics and a masters degree in computer engineering.

On February 4, 2012, Anthony Farrugia was working as an operating engineer when he stepped into a hole in the floor of the sub-basement at 1440 Broadway in Manhattan.

1440 Broadway in New York City’s Fashion District

Mr. Farrugia, then 29 years old, sued the building owner and others alleging that he sustained serious ankle and back injuries due to their negligence in creating and not repairing the dangerous condition.

Defendants were found to be at fault and the Manhattan jury awarded damages as follows:

  • pain and suffering – $50,000 (all past – seven years)
  • lost wages – $400,000 (all past)
  • medical expenses – $45,570 (all past)

Plaintiff argued that the damages awards were inconsistent, against the weight of the evidence and inadequate; however, in Farrugia v. 1440 Broadway Associates (1st Dept. 2020), the appellate court affirmed the awards.

Here are the injury details:

  • presented to hospital emergency room on date of accident but left without treatment
  • treated with orthopedic surgeon six days after the accident complaining of ankle and low back pain
  • first ankle surgery on 5/7/12  to remove loose body, shave synovium and modified Brostrom reconstruction of ligaments
Modified Brostrom Procedure
  • second ankle surgery on 7/2/15 to reconstruct ankle ligaments with cadaver ligament and four screws
  • herniated disc at L4-5 causing low back pain, radiating, with restricted range of motion, requiring multiple trigger point and epidural steroid injections; recommended for L4-5 decompression and fusion surgery
  • continuing ankle and back pain, limitations as to recreational activities and inability to return to any employment

Defendants claimed that plaintiff’s ankle surgeries and his back pain were not the result of the accident; rather they consisted of congenital conditions and pre-existing injuries. An MRI from 2007, five years before the accident, showed a joint space deformity and an osteochondral defect in plaintiff’s ankle as well as an os trigonum in his foot. At most, defendants argued, plaintiff sustained soft tissue injuries as a result of the accident that resolved fully before trial and he was fully able to return to work.

Plaintiff argued that any pre-existing conditions were asymptomatic before the accident, and that defendants were liable for any aggravation or activation. Furthermore, plaintiff argued that the award of $400,000 for past wages and  the award for past medical expenses indicated that the jury rejected defendants’ “strains and sprains” defense and, therefore, it was inconsistent to fail to award future damages, especially for pain and suffering.

Inside Information:

  • The jury determined that plaintiff was 25% comparatively negligent.
  • Plaintiff’s medical testimony included his ankle surgeon, his other treating orthopedic surgeon and an expert diagnostic radiologist; the defense offered experts in diagnostic radiology, orthopedics and physical medicine and rehabilitation.

On February 24, 2015, Sheila Samlal slipped and fell on ice covering the parking area behind the multi-family house at 290 Graff Avenue in the Bronx where she and her husband were renting the top two floors. Ms. Samlal sustained serious ankle injuries and sued claiming that her landlord was responsible.

290 Graff Avenue, Bronx, NY

The jury returned a verdict finding plaintiff and defendant equally at fault. They awarded plaintiff pain and suffering damages in the sum of $150,000 (past only – four years). Plaintiff moved to set aside the verdict as against the weight of the evidence on the issue of apportionment of liability and inadequate as to damages. The trial judge denied the motion in all respects.

In Samlal v. Ghanbarpour (1st Dept. 2020), the appellate court affirmed the liability split but agreed with plaintiff that the damages award was inadequate – the court ordered that future pain and suffering damages in the sum of $200,000 should be awarded, thus increasing the pain and suffering damages award (before apportionment) to $350,000.

Here are the injury details:

  • bimalleolar ankle fracture with lateral angulation of distal fibular fragment

  • closed reduction and casted on date of accident
  • open reduction internal fixation surgery with insertion of metal plate and screws
  • casted two weeks, boot and crutches for two months
  • physical therapy for one year
  • some loss of range of motion
  • continued daily  pain, difficulty standing for long periods, unable to wear high heels, difficulty with usual chores around house
  • three very visible scars at surgical site

The defense argued that at the time of trial plaintiff was in no distress, walked without a limp and had an  outstanding result with no residual disability.

Inside Information:

  • The landlord testified at her deposition that she gave plaintiff a free parking space in exchange for their help shoveling snow. The landlord died prior to trial.
  • Plaintiff’s husband asserted a loss of consortium claim that was rejected by the jury and the courts. He testified that for the first year after his wife’s accident he did all the things around the house that his wife was unable to do but the trial judge noted, among other things, that there was no concrete testimony as to the time period he undertook the chores, what help he may have provided before the accident or whether he missed any work as a result.

 

On September 29, 2013, Stelios Hadjidemetriou was stopped at a red light in Astoria when his car was struck in the rear causing his knee to strike the dashboard. He sued the other driver alleging a knee injury.

After the Queens jury returned a liability verdict in plaintiff’s favor, a damages trial was conducted following which the same jury returned a verdict awarding plaintiff pain and suffering damages in the sum of $2,000 (past only – three and a half years).

The trial judge denied plaintiff’s motion to increase the damages award. In Hadjidemetriou v. Juarez  (2d Dept. 2020), the appellate court increased the pain and suffering award to $50,000 but determined that the jury’s award of no damages for future pain and suffering is not contrary to the weight of the evidence.

Here are the injury details:

  • Plaintiff, then 68 years old, declined medical attention at the scene but called an orthopedic surgeon five days later after his knee swelled up and was painful
  • First medical treatment was 25 days post-accident (first available appointment)
  • MRI showed a complex tear of the posterior horn of the medial meniscus, mild degenerative changes of the lateral meniscus and high grade cartilage loss in the central patella
  • Arthroscopic surgery on 1/9/14 – partial medial meniscectomy
  • Six days at home post-surgery on crutches followed by two months of physical therapy
  • Continuing pain going up stairs and unable to jog (as he used to regularly before the collision)
  • Needs total knee replacement surgery within seven years

The defense expert orthopedic surgeon disagreed with plaintiff’s expert. He opined that plaintiff did not tear his meniscus in the accident, did not need the surgery he underwent and that his injury was due to degeneration, aging and wear and tear. He noted that plaintiff had pre-existing chondromalacia in his knee as well as osteoarthritis. Plaintiff countered noting that whatever the pre-existing condition of his knee, he was asymptomatic, active and pain-free prior to this accident.

Inside Information:

  • The defendant driver paid plaintiff $800 for damages to his vehicle at the scene of the accident.
  • Plaintiff’s counsel requested additur to $200,000 ($100,000 past and $100,000 future).

On October 5, 2013, Christine O’Connell was sitting in her car stopped at a red light in Hamburg (a Buffalo suburb) when another driver drove through the light causing a crash. Christine, then a 24 year old student, declined medical treatment at the scene but  called her doctor that night complaining of low back pain.

In her ensuing lawsuit, Christine recovered the insurance policy limits of $500,000 against the other driver and owner.

She then made a supplementary underinsured motorist (“SUM”) claim against her own carrier, State Farm. The SUM arbitrator awarded $2,250,000, less a setoff of $500,000 (the amount already recovered in the underlying lawsuit), for a total of $1,775,000.

In O’Connell v. State Farm Mutual Auto. Ins. Co. (4th Dept. 2020), the judgment entered upon the SUM arbitration award has been affirmed. The appellate court stated that the findings of the arbitrator were rational, had evidentiary support, and were not arbitrary and capricious.

Here are the injury details:

  • five herniated discs: at T12-L1, L1-2, L3-4, L4-5 and L5-S1 (with bilateral radiculopathy and compression on nerve roots)
  • low back pain, radiating and continuing
  • unable to return to prior activities such as running, swimming and regularly exercising
  • limited in ability to bend, get dressed, cook, clean and perform household chores
  • need for three level discectomy and fusion of L3-S1 within near future

The defense noted that plaintiff’s first medical treatment herein was 10 days after the accident, she never took any medicine except Tylenol, did not miss any time from school because of the accident and was involved in a 2006 car accident following which she was diagnosed with cervical and thoracic herniations that “may ultimately require surgical intervention.” The defendant’s expert neurosurgeon in the 2013 matter opined that plaintiff sustained some temporary pain to her lumbar spline that requires no further treatment and the MRI reports showing herniations portray only mild degenerative changes.

Inside Information:

  • Plaintiff graduated from law school after the accident and joined her father’s law firm – the firm that represented her in this matter.
  • The only medical provider plaintiff treated with other than her neurosurgeon  was a chiropractor (250 times); she never underwent physical therapy or saw a pain management physician.

On June 19, 2013, German Paucay, then 24 years old, was employed as a stucco installer at the site of the construction of a new building at 601 East 163rd Street in the Bronx when he fell from a scaffold seven feet to the ground below sustaining injuries.

The Site of the Accident

In his ensuing lawsuit against the premises owner, the general contractor and a subcontractor, Mr. Paucay was granted summary judgment as to liability, under Labor Law Section 240(1), and a damages only trial was conducted at the end of which the Bronx County jury awarded pain and suffering damages in the sum of $75,000 (all past – five and a half years). Plaintiff was also awarded damages for medical expenses ($90,000 past, $20,000 future – two years).

In plaintiff’s post-trial motion for a new trial, he argued that the verdict was on its face inconsistent: “How can the jury award no money for future pain and suffering and then determine that future medical expenses were warranted?” The trial judge denied the motion.

In Paucay v. D.P. Group General Contractors/Developers, Inc. (1st Dept. 2020), it was held that the verdict on future pain and suffering was contrary to a fair interpretation of the evidence and constituted a material deviation from what would be reasonable. Accordingly, the appellate court remanded the case for a new trial on the issue of future damages only.

Plaintiff claimed he sustained the following injuries:

  • significant traumatic brain injury along with major depression, post-traumatic stress syndrome and post-concussion encephalopathy
  • injuries to both knees: fractures to his left patella and fibula, with tears to several ligaments; right knee meniscal tears requiring arthroscopic surgery on 6/20/16
  • herniated disc at L5-S1, necessitating laminectomy on 5/17/17

Defendants argued that the jury reasonably concluded either that many of the injuries claimed by plaintiff were feigned or not causally related to the accident, or that the injuries were not as significant as alleged by plaintiff and his doctors. It was their position from the start that plaintiff fell onto his knees and then fell to the ground, did not fall backwards and hit his head and that the only injuries sustained in the accident were to his patella and related ligaments which ultimately healed.

Inside Information:

  • Ten medical experts testified – seven for plaintiff, three for the defense.
  • The jury also awarded damages for plaintiff’s loss of earnings ($20,000 – past only).
  • In his closing argument, plaintiff’s attorney asked the jury to award damages for past pain and suffering between between $3,000,000 and $5,000,000 and for the future between $8,000,000 and $12,000,000.

In November, 2012, then 64 year old Marlena Robaey was diagnosed with malignant mesothelioma. She then sued several companies alleging that she’d contracted mesothelioma from her exposure over many years to asbestos from their automotive gaskets in car engines.

On January 20, 2017, a Manhattan jury ruled in plaintiff’s favor and awarded her pain and suffering damages in the sum of $50,000,000 ($40,000,000 past – four and a half years, $10,000,000 future – one year). The trial judge reduced the pain and suffering award to $16,000,000 ($12,000,000 past, $4,000,000 future).

In Robaey v. Air & Liquid Systems Corp.. (1st Dept. 2020), the pain and suffering award was further reduced to $9,500,000 ($5,500,000 past, $4,000,000 future).

Here are the injury details:

  • malignant mesothelioma epithelioid type with tumor spreading upon diagnosis
  • numerous invasive procedures and surgeries including complete hysterectomy, oophorectomy (removal of ovaries), omentectomy (removal of peritoneum connecting stomach with other organs), chemotherapy and a debulking procedure (involving resection of the right hemidiaphragm and small bowel)
  • chronic and continuing pain (especially in abdomen and lungs), extreme shortness of breath, systemic cytotoxic therapy (causing nausea, vomiting and diarrhea), depression and fear of impending death

Defendants argued that the verdict was wildly excessive and noted that for a total of about 25 months since her diagnosis plaintiff’s disease had been stable and her primary reported symptoms were fatigue, shortness of breath upon exertion and mild pain. Furthermore, they noted that plaintiff had pre-existing conditions unrelated to asbestos exposure including type two diabetes, chronic kidney disease (that left her facing permanent dialysis) and pancreatitis.

The jury also awarded loss of consortium damages to plaintiff’s husband in the sum of $25,000,000 ($15,000,000 past, $10,000,000 future) which was reduced by the trial judge to $1,250,000 ($1,000,000 past, $250,000 future). The appellate court further reduced the consortium award to $900,000 ($650,000 past, $250,000 future).

Inside Information:

  • Plaintiff died from her injuries on May 30, 2017, at the age of 68 years.
  • Defendants objected to several aspects of plaintiff’s closing argument including counsel’s reference to the defense pulmonology expert, James D. Crapo, M.D., as “Full of Crapo.” The trial judge issued instructions to the jury to disregard any improper remarks.

On January 6, 2015, Kenia Cabrera had just finished work at a Dunkin Donuts shop located at LaGuardia Airport and had returned to the employee parking lot to retrieve her car and go home. As she was exiting the lot, a Mack truck spreading salt to keep the lot free of ice struck her car.

Ms. Cabrera, then 40 years old, refused medical attention at the scene of her accident; she went to her primary care physician the next day complaining of neck and back pain. She sued the Port Authority of New York and New Jersey (the owner of the salt-spreader truck) claiming serious personal injuries.

A Bronx County jury awarded plaintiff pain and suffering damages in the sum of  $16,000,000 ($4,000,000 past – three and a half years, $12,000,000 future – three years). The trial judge ordered a new trial on damages to be held in part because the $12,000,000 future damages award was excessive. In  Cabrera v. Port Auth. of N.Y. & N.J. (1st Dept. 2020), the appellate court went further ordering that a new trial be held on both liability (and damages) because of errors by the trial judge as to evidence issues.

Here are the injury details:

  • L5-S1 annular tear with 4/2 /15 lumbar fusion surgery to remove bone and place hardware to prevent displacement
  • C4-5 herniated disc with cervical fusion surgery to remove disc and place hardware on 3/1/16
  • required walker for three months after back surgery and was out of work for several months
  • continuing pain and restricted ranges of motion

Defendant argued that the vehicle impact was low speed and minor, plaintiff sustained no traumatic injuries from the accident, she returned to work after the accident (and made no loss of earnings claims), waited two weeks after seeing her doctor before seeking any further medical treatment and that there was “no medically indicative reason why the plaintiff underwent either surgery.”

Inside Information:

  • In his closing argument, plaintiff’s counsel asked the jury to award $4,000,000 for past pain and suffering and $12,000,000 for the future – the exact amounts they awarded.
  • Inexplicably, the jury awarded future damages for three years only, despite plaintiff’s life expectancy of 41 years.