On January 13, 2006 at about 1 p.m., Mohammed Kayes, then 44 years old, was walking with his three year old daughter on the sidewalk adjacent to Queens Boulevard near 34th Street in Long Island City. Suddenly, a transit authority truck backed up and pushed over a 40 pound stop sign and pole that then dislodged and struck Kayes on his head and neck. He was knocked to the ground unconscious.
In his ensuing lawsuit against the truck driver and the transit authority, Kayes was awarded summary judgment on the issue of liability and a jury trial on the issue of damages only was held in Queens County resulting in a plaintiff’s verdict in the sum of $2,000,000 for pain and suffering damages ($500,000 past – four years, $1,500,000 future – 30 years). Defendants appealed arguing that the award was excessive; however, in Kayes v. Liberati (2d Dept. 2013), the jury verdict has been affirmed.
Here are the details of plaintiff’s injuries and treatment:
- Large bruise on head with pain in neck, head and back requiring emergency ambulance transport to the local hospital
- Treated in E.R. with neck brace and pain medication, discharged eight hours later after negative CT scan
- Medical clinic treatment after two sleepless nights in pain; treated with pain medications and referred to physical therapist where he was treated for nine months 1-2 times per week
- Continuing neck and left arm pain with radiculopathy, spasms and significant loss of range of motion in neck
- MRI confirms herniated disc at C5-6 (impinging on nerves) and EMG confirms related left arm nerve damage
- Epidural steroid injections
- Surgery July 11, 2007: anterior cervical discectomy and fusion in which the disc between C5 and C6 was removed, a piece of bone was inserted as a stabilizer and a titanium plate was screwed in to lock the two vertebrae together
The surgery helped reduce the pain in plaintiff’s left arm but it did not eliminate his neck pain. Mr. Kayes had continuing headaches, neck pain and burning pain on the left side of his head. Several pain medications and a new course of physical therapy were tried to little avail.
Mr. Kaye testified as to his continuing injuries and disabilities:
- unremitting pain, both day and night
- cannot lift more than 10 pounds
- dizziness from the medications
- unable to drive a car, play with his child, do household chores or return to work as a busboy
Plaintiff’s surgeon, Alexander de Moura, M.D., testified that his prognosis is “guarded” at best and that within 10 years plaintiff will require additional cervical surgery because of increased stress on the level above the fusion site where the disc was already starting to degenerate more.
At the close of trial, before the jury began its deliberations, the trial judge directed a verdict as to plaintiff’s future medical expenses $831,640) and lost earnings ($605,000) because the defendants had failed to put forth “one iota” of evidence contradictory to that proffered by plaintiff. The appellate court, though, ruled that the judge should not have taken those issues away from the jurors because they could rationally have determined that the awards for those items of damage could have been less than the amount directed by the judge. Accordingly, a new trial was ordered to be held on the issue of damages for future medical expenses and lost earnings only.
- Plaintiff was examined by defense experts in orthopedics and neurology but neither physician was called to testify because their examinations pre-dated plaintiff’s surgery and defense counsel never opted to have follow-up examinations conducted.
- The only post-surgical examinations for the defense were conducted by an ophthalmologist and a psychologist which the trial judge declared was “amazing”: “After surgery to fuse the upper levels of the neck, instead of having an [examination] as to the neck … they take a a psychiatric [examination] and opthalmologic [examination] ….”
- The only witness called by the defense was a radiologist who reviewed the MRI and confirmed that Kayes had sustained disc herniations at C5-6 and acknowledged that the fusion surgery will accelerate the degenerative process in plaintiff’s cervical spine.
- The claim for plaintiff’s three year old daughter was settled for $8,000 at the start of the trial.