On June 26, 2013, Mark Perez struck his head and sustained traumatic brain and other injuries in a 10-foot fall onto the concrete below from the top of a vendor booth under construction at Jones Beach Theatre in Wantagh. A worker assisting the then 30 year old Mr. Perez caused the accident when he bumped into the booth with a forklift.

Jones Beach Theatre

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

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

In Perez v. Live Nation Worldwide, Inc. (1st Dept. 2021), the appellate court ordered a further and final reduction to $20,000,000 ($5,000,000 past, $15,000,000 future) representing the largest pain and suffering damages award approved on appeal in the 34 years since the enactment of CPLR 5501(c)  (which requires New York’s appellate courts to determine on a case by case basis whether jury awards deviate materially from reasonable compensation).

Here are the injury details:

  • airlifted to hospital, placed in medically induced coma and on life support; admitted for one month before transfer to rehabilitation hospital for two weeks
  • severe head trauma with large epidural hematoma, bilateral subdural hematomas and subarachnoid hemorrhage requiring emergency and three additional surgeries
  • surgery #1 on date of accident – hemicraniectomy to remove portion of skull bone and place it in abdomen
  • surgery #2 on 8/8/13 – cranioplasty to replace the bone that had been stored in abdomen
  • surgery #3 on 1/20/14 – cranioplasty with titanium mesh placement
  • surgery #4 on 5/12/14 – cranioplasty to remove hardware and debride wound

  • requires fifth surgery to repair large defect in head and to protect brain
  • non-surgical fractures of  temporal, maxillary and cheek bones in face, six ribs and two thoracic vertebrae, separated shoulder, punctured lung
  • seizures; post-traumatic epilepsy
  • extensive encephalomalacia
  • significant cognitive deficits
  • risk of future neurological disease
  • chronic pain and extensive scarring

Plaintiff contended that he  had permanent and profound cognitive, neurological, emotional, psychological and physical limitations that have fundamentally altered every aspect of his life.

The defense argued that plaintiff made a “considerable recovery” and was malingering, noting that he exercises daily (often at a gym), is able to dress, bathe and feed himself and that he testified at trial and in five depositions with great specificity, recall, command and endurance.

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

Inside Information:

  • In his summation, plaintiff’s attorney asked the jury to award pain and suffering damages in the sum of $85,000,000; defense counsel suggested $5,000,000 (while suggesting that an additional $5,000,000 would be fair for future medical, rehabilitation and custodial care expenses).
  • As in the recent case of Hedges v.  Planned Security Services, Inc., discussed by us here, several business, insurance, corporate and lobbying entities weighed in on this case as so called amici curiae arguing that plaintiff’s counsel’s summation amounted to an improper “anchoring” in that counsel proposed that the jury award an “astronomical, unreasonable figure for pain and suffering” that led to the “runaway” verdict. Once again, the court declined to announce a new rule prohibiting the practice of anchoring.

 

On May 11, 2012, Martin Gjeka was working as a flagman directing traffic around an unguarded trench in the roadway at East 116th Street in Manhattan, which was being excavated by the adjacent building owner to allow new sewer lines to be installed, when a truck struck his lower back, causing him to fall into the trench and sustain serious back injuries.

In Mr. Gjeka’s ensuing lawsuit, the jury found that the driver was at fault (in addition to the building owner whose liability was established by summary judgment under the Labor Law) and they awarded him pain and suffering damages in the sum of $3,000,000 ($1,500,000 past – six years, $1,500,000 future – 26 years).

In Gjeka v. Iron Horse Transportation, Inc. (1st Dept. 2021), the appellate court ordered that the pain and suffering award should be reduced to $2,000,000 ($500,000 past, $1,500,000 future).

Here are the injury details:

  • loss of consciousness at scene, transported by ambulance to hospital complaining of back and leg pain
  • admitted to hospital for three weeks
  • herniated disc L4-5
  • extensive physical therapy and numerous epidural injections into spine
  • laminectomy at L4-5 on 8/7/14
  • failed back syndrome – continuing lumbar radiculopathy with worsening of back pain and disc space collapse

  • constant pain requiring continuing narcotic pain medications and insertion of spinal cord stimulator
  • unable to walk without a rolling walker or cane
  • unable to sleep, bend, put on socks or shoes; unable to work

The defense argued that an MRI showed pre-existing significant degenerative disease at L4-5 that was not caused by the accident.

Inside Information:

  • The jury awarded loss of consortium damages to plaintiff’s wife in the sum of $1,000,000 ($500,000 past – six years, $500,000 future – 26 years) but the appellate court ruled that the past loss of consortium award should be reduced to $300,000. Plaintiff, 51 years old at trial, and his wife, 47, were married in Albania in 1991. Plaintiff was persecuted and imprisoned there but was able to escape to the U.S. in 2002. Mrs. Gjeka and their young children were able to rejoin her husband here after seven long years  but “her dreams of having a normal, happy family came crashing to an end” after plaintiff’s accident less than three years later.
  • In his closing argument, plaintiff’s counsel asked the jury to award $13,500,000 for plaintiff’s pain and suffering

On October 31, 2011, Marion Hedges went to a shopping center at East 117th Street in Manhattan with her 13 year old son. After they left a store, they walked to a parking garage station, when she was hit by a metal shopping cart which two adolescent boys threw over a railing from a pedestrian bridge 70 feet above on the fourth floor of the shopping center.

East River Plaza – Site of the Incident

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

In Hedges v. Planned Security Services, Inc. (1st Dept. 2021), the liability determinations were affirmed but the appellate court further reduced the pain and suffering damages award to $13,000,000 ($3,000,000 past, $10,000,000 future).

Here are the injury details:

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

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

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

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

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

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

Inside Information:

  • The boys who threw the cart over the railing were arrested and convicted as juveniles.
  • Several entities including Business Council of New York State and New York City Transit Authority, filed amicus curiae briefs, arguing that it was improper to allow anchoring – which they defined as plaintiff’s counsel urging jurors to award amounts that vastly exceed prior sustained amounts for individuals with similar injuries. They claimed a “substantial interest in ensuring that personal injury awards in New York remain predictable and stay within the historical range.” The appellate court declined to announce a new rule prohibiting the practice of anchoring.

  • This case has been a hard fought battle between some of the leading firms in New York personal injury law – including Kramer, Dillof, Livingston & Moore for the plaintiffs and Mauro Lilling Naparty on appeal for the defendants.

On January 30, 2013, Arnaldo Rojas was driving his car on Union Avenue in Harrison when another car crossed the double yellow line causing a crash.

In his ensuing lawsuit, Mr. Rojas, then 62 years old, claimed neck and brain injuries. He was granted summary judgment as to liability and the matter then proceeded to a trial on damages.

A Westchester County jury awarded plaintiff pain and suffering damages in the sum of $150,000 ($100,000 past – 4 3/4 years; $50,000 future – 14 1/2 years). The jury determined that plaintiff had sustained a significant limitation of use of his neck (or brain) but that he had not sustained a permanent consequential limitation of use of either his neck or his brain.

Plaintiff appealed arguing that the amounts awarded were inadequate. In Rojas v. Brabant (2d Dept. 2021), the appellate court agreed and ordered that the pain and suffering damages should be increased to $500,000 ($300,000 past, $200,000 future).

Here are the injury details:

  • herniated disc at C5-6 requiring cervical discectomy and fusion surgery with insertion of plate and screws
  • head trauma – laceration, hematoma and loss of consciousness

Plaintiff claimed that the head trauma caused significant traumatic brain injuries including a dramatic cognitive decline and significant memory loss. The defense contended that plaintiff had a mild concussion and that any symptoms such as headaches and confusion resolved within three weeks. Each side presented medical testimony to support their positions.

As to plaintiff’s spinal injury, the defense claimed there was no permanence in view of the treating surgeon’s testimony that the surgery was successful and allowed plaintiff to continue doing the same things he did before the accident such as golfing and hiking. An expert neurosurgeon for the defense testified that plaintiff had no permanent residual functional limitations. Plaintiff, though, claimed continuing pain that required multiple injections and left him with limited range of motion and unable to swim, run or drive.

Inside Information:

  • Plaintiff was treated and released from the hospital on the date of the accident without any overnight admission.
  • Suit was commenced in Bronx County but the venue was changed to Westchester after defendants objected and offered proof that all parties resided in Westchester.
  • In their closing arguments, defense counsel suggested that the jury award $100,000 total damages, past only; plaintiff’s counsel suggested $500,000 for past pain and suffering plus $725,000 for the future.

 

 

On September 13, 2012, Juan Velez was riding his motorcycle on West 125th Street in Manhattan when he was struck by a cab owned by Bolla Taxi, Inc. and driven by Kandarpo Roy. Tragically, Mr. Velez, then 62 years old, was killed as a result of the crash.

In the ensuing lawsuit by the decedent’s daughter, the taxi driver was found to be fully at fault and the jury awarded pre-death conscious pain and suffering damages in the sum of $750,000. The defendants sought to set aside the verdict and, alternatively, for a reduction of the award. The motion was denied except to the extent that the trial judge agreed with defendants that the award was excessive and he found that it should be reduced to $350,000.

Defendants appealed arguing that plaintiff did not meet her burden of proof to show that the decedent experienced any conscious pre-death pain and suffering and, therefore, there should have been no award at all for pain and suffering damages.

In Velez v. Roy (1st Dept. 2021), the appellate court affirmed the trial judge’s denial of defendants’ post-trial motion to set aside the verdict holding that the jury’s conclusion that the decedent experienced pain and suffering before he died (he was pronounced dead at the hospital 34 minutes after the crash) is supported by both the testimony of a passerby EMT and a medical expert.

Here are the injury details:

  • when the cab accelerated after coming to a stop in its lane, it struck the motorcycle, ran over the decedent and and pinned him to the rear of a stopped bus causing extensive blunt injuries to his torso including  fractures to nearly all of his ribs and a leg and a laceration in his lung which in turn caused his lung to fill with blood
  • an off-duty EMT testified to one minute of pre-death conscious pain and suffering; he heard the crash from the corner and ran to the scene arriving within six seconds before the cab backed off of Mr. Velez;  he testified that Mr. Velez was alive, trying to move, flailing his legs about and gasping for air; after about 15 seconds Mr. Velez lost consciousness, he administered CPR, Mr. Velez was revived and again tried to move and breathe making gargling sounds but then lost consciousness again
  • ambulance personnel arrived three minutes after the crash and determined Mr. Velez was then unconscious (and he never regained consciousness thereafter)
  • an expert neuropathologist testified for plaintiff that according to the autopsy report there were no injuries to the decedent’s brain or spinal cord, meaning that Mr. Velez could feel the pain for that one minute described by the EMT

Defendants produced an expert neurologist who opined that Mr. Velez was never conscious after impact and therefore experienced no pre-death conscious pain and suffering.

Inside Information:

  • The defendant driver testified through a Bengali interpreter.
  • The police accident investigation concluded that the cause of the crash was pedal misapplication – the driver stepped on the gas  pedal by accident.
  • Defendants had only $100,000 of liability insurance coverage. Plaintiff, through her highly regarded and tenacious counsel, Roth & Roth, is now pursuing collection of the entire $350,000.

On July 27, 2013, Franklin Abreu-DePena, then 39 years old, was driving his taxi in the Bronx when he was involved in a crash with another vehicle.

Mr. Abreu-DePena claimed shoulder, neck and back injuries and in his ensuing lawsuit again the other driver, the jury (a) determined that the other driver was 60% at fault and (b) awarded pain and suffering damages (before apportionment) in the sum of $600,000 ($100,000 past – six years, $500,000 future – 15 years).

Plaintiff claimed that the pain and sufferings award was inadequate; however, the trial judge disagreed and declined to disturb the award. Plaintiff appealed.  In Abreu-DePena v. Weber (1st Dept. 2021), the appellate court ordered an increase in pain and suffering damages to $3,000,000 ($1,000,000 past, $2,000,000 future – 33 years).

Here are the injury details:

  • Shoulder – “around the world” labral tear, Hill-Sachs and socket fractures, requiring arthroscopic surgery on 10/31/13 to repair the tear with six screws
  • Back – herniations at L4-5 requiring decompression laminectomy and fusion surgery on 4/22/14
  • Neck – herniations at C5-6 and C6-7 requiring fusion surgery on 5/26/15

Plaintiff claimed that none of the surgeries were successful in addressing his continuing pain, limited ranges of motion and difficulties standing and walking and that he will require substantial additional medical treatment including surgeries on his shoulder, back and neck. He was awarded $200,000 for future medical expenses (15 years).

The defense argued that the accident was a minor sideswipe that did not cause any significant injuries requiring any of the surgery that plaintiff underwent. Furthermore, their medical experts testified that plaintiff already had a degenerated spine before the accident, sustained no fractures in the crash, did not have a torn labrum and did not need any future medical treatment related to the accident.

Inside Information:

  • Although the trial judge advised the jury that plaintiff’s life expectancy was 33 years, the jurors inexplicably (and without an evidentiary basis) set the future pain and suffering award period at 15 years. The appellate court remedied that error.
  • Plaintiff did not contest the jury’s finding that he was 40% at fault for the accident.
  • There was extensive medical and expert testimony including, for plaintiff, a biomechanical engineer, his treating orthopedic surgeons and pain management physician and an expert anesthesiologist. The defense called an accident reconstructionist, a biomechanical engineer, a radiologist and an orthopedic surgeon.

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.