On July 20, 2007, Patrice Algerio drove her small car through an intersection in Ronkonkama when a box truck driven by an air conditioning firm’s employee drove through a stop sign and collided with her.

Claiming knee injuries, Ms. Algerio sued and fault was assessed 100% against the defendants (the owner and driver of the box truck). A damages only trial was held in Suffolk County in April 2010 resulting in a verdict for pain and suffering in the sum of $50,000 (all past – 3 years).

Plaintiff appealed arguing that the past damages award was inadequate and that the jury was required to award future damages as well.

In Algerio v. Caribbean A.C. (2d Dept. 2012), the appeals court held that the past damages award was inadequate and ordered an increase to $200,000.

As to future damages, though, the appeals court declined to disturb the jury’s finding that plaintiff was entitled to no award at all.

The decision states that it concerns a knee injury; however, there is no discussion of the nature of the injuries.

Here are the injury details:

  • knee pain at the scene requiring ambulance transport to the local hospital where plaintiff was treated and released
  • meniscal tears
  • arthroscopic surgery six weeks later (synovectomy, debridement and menisectomy)
  • total knee replacement surgery on May 13, 2009
  • continuing pain, antalgic gait (limp), inability to walk for more than 15 minutes, need to wear compressant stockings


Plaintiff, 52 years old at the time of the accident, was employed as a drug counselor seeking government assistance for her clients. She was out of work for three months.

The key to the denial of future damages, both for the jurors and the judges, was the fact that plaintiff had been involved in a very serious car accident in 1975 in which she sustained fractures of her shoulder, elbow and wrist as well as her femur (same leg as the current injury). She required open reduction and internal fixation surgery with an intramedullary rod from her hip to her knee. The rod was surgically removed a year later.

Ms. Algerio claimed she recovered fully from the prior accident after the rod removal and was completely asymptomatic for decades.

The defense argued that the 2007 knee injury was insignificant, focusing on arthritis in the knee joint that was present in an MRI taken within a week of the current accident.

Plaintiff’s treating surgeon, Fred D. Cushner, M.D., admitted that Ms. Algerio had extensive arthritis in her knee before the 2007 accident and that he performed the knee replacement on her "because she had arthritis." Defense counsel called this the "moment of great clarity in the case, the pinnacle of the trial" because, he said, it established that the 2007 accident was not the cause of the knee replacement surgery.

Plaintiff’s attorney emphasized other testimony from Dr. Cushner in which he stated that while the prior injury produced some degeneration, the new accident exacerbated plaintiff’s arthritis and "resulted in her getting the knee replacement surgery …."

There was no doubt but that plaintiff’ could recover only for damages caused by aggravation of her pre-existing condition, not for the condition itself. In other words, as charged by the judge: plaintiff was entitled to recover for the increased pain and disability resulting from the aggravation.

In arguing against an award of future damages, defense counsel, in his summation, suggested that due to her pre-existing arthritis Ms. Algerio would have needed a knee replacement regardless of the current accident. He said that his clients "should not have to continue to pay for things which would have happened anyway." Clearly, the jurors agreed and the appellate judges found that there was enough evidence to support the conclusion that plaintiff was not entitled to any damages for future pain and suffering.

Inside Information:

  • Plaintiff’s attorney asked the jury to award $2,000,000 for pain and suffering damages ($600,000 past plus $1,400,000 future); whereas defense counsel suggested $60,000 (past only).
  • Defense counsel attacked plaintiff’s credibility because she falsely testified that she began taking an anti-depressant medication only after the 2007 accident. In fact she had been taking the drug for years before.
  • Defense counsel questioned whether in fact plaintiff was telling the truth in view of the absence of any corroborating testimony that plaintiff lived an active, pain-free life until the 2007 accident:  " … no one from the company she works for, no neighbors to testify, no friends who witnessed them dancing …."