Seven months pregnant with twins, Kathleen Conlon was slowing down in traffic on the Brooklyn-Queens Expressway on July 12, 1999 when her car was struck in the rear by a New York City express bus. Her car buckled and her back was injured but her twins were unharmed (and born healthy in due time).

You don’t want your little car hit by one of these:

 From the scene of the accident, Ms. Conlon was whisked by ambulance to a local hospital where she was treated for her back pain.  She was treated conservatively over the next two months under the care of a chiropractor but her pain worsened and radiated to her legs, a sign that there may be herniated discs. Sure enough, an MRI later revealed herniations at L4-L5 and L5-S1 as well as nerve root compression.

After more conservative treatment, additional MRI studies and several rounds of painful epidural injections, Kathleen’s pain continued and it appeared to be getting worse – she was losing the normal fluid between her discs and the space between them was collapsing. Furthermore, she’d developed osteophytes or bone spurs that pressed on nerve roots.

Finally, in May 2004, in an effort to relieve her unremitting pain, Kathleen submitted to major surgery – a lumbar laminectomy with decompression of the nerve roots and a spinal fusion with bone graft, like this:

A lawsuit against the New York City Transit Authority (the NYCTA owns and operates the city buses) was underway and Conlon had two years earlier won summary judgment on liability, meaning that the only issue for a jury would be the amount of damages. Despite the liability finding, the defense never made any settlement offer at all so the case proceeded to a damages trial.

On September 25, 2008, a Kings County jury returned a verdict for $5,000,000 – entirely allocated to plaintiff’s nine years of pain and suffering from the date of the accident to the date of the verdict.

Nothing at all was awarded for the 30 year old plaintiff’s future pain and suffering despite the jury’s findings that her injuries are permanent and she has a 41 year life expectancy.

On appeal, the judges last week in Conlon v. Foley (2nd Dept. 2010) agreed with the defense that $5,000,000 was excessive and they ruled that $700,000 for past pain and suffering (9 years) would be reasonable. As to future damages (41 years), the judges found that the jury’s failure to award anything at all was not based on a fair interpretation of the evidence, was inadequate and $100,000 should be awarded.

The big issue in Conlon v. Foley was not the large past pain and suffering award (plaintiff’s appellate counsel conceded it was excessive and suggested that it might fairly be reduced to $2,000,000); rather it was the award of zero for future damages.

Not at all apparent in the appellate court decision was the real reason the jury awarded nothing for the future – the trial judge’s order that plaintiff’s doctors were not allowed to testify as to her need for a second surgery.

Andrew Merola, M.D., the head of spinal surgery at St. Vincent’s Hospital, was plaintiff’s treating doctor. He’d performed the first surgery and had determined that his patient suffered from failed back syndrome and, as a result, plaintiff needed a new laminectomy with discectomy and a fusion with a metal plate and screws.

The jury was not told of this major development (the need for new surgery) because the defense claimed that they were taken by surprise, did not know plaintiff would make this claim at trial and it would therefore be unfair to permit such testimony. The judge agreed because plaintiff had not specifically mentioned this second surgery in her bills of particulars (pre-trial disclosure documents mandated under CPLR 3043. There had been the standard disclosure that plaintiff’s spinal injuries would require future surgical intervention but, the defense argued, once the first surgery occurred there was no specific notice that a second might be needed.

The jury did hear testimony from plaintiff and her doctors that, although she’d returned to work as a teacher, she’d need more treatment, including injections, and the following appeared to be permanent:

  • continuing back pain
  • nerve damage
  • significant loss of spinal range of motion
  • development of arthritis
  • presence of scar tissue
  • difficulty standing, sitting and bending

Inside Information:

  • The defense was precluded from offering the testimony of a neurologist who examined the plaintiff because the expert notice required was not timely exchanged.
  • The only doctor to testify for the defense was a radiologist, Lewis Rothman, M.D. who testified that all of plaintiff’s back pain stemmed from pre-existing degeneration. He was skewered by plaintiff’s counsel regarding testimony he’d given in other trials that was at odds with the position he took in this trial and also regarding a lawsuit against his former partners in which he reluctantly admitted to Ms. Conlon’s attorney that he’d improperly backdated records.