Charles Bacon, a 23 year old mechanical engineer, was driving in Manhattan on August 17, 2007 when he was stopped at a red light and his car was struck in the rear.
A week later, Bacon sought treatment with an orthopedic surgeon for complaints of neck and back pain. MRI reports later showed herniated discs at C4-5, T9-10 and L5-S1.
Bacon sued the other driver, liability was resolved in his favor and a damages only trial was held in October, 2010. The jury heard testimony from treating and expert physicians for both sides (as well as plaintiff’s physical therapist) and then rendered a pain and suffering damages verdict in plaintiff’s favor in the sum of $850,000 ($100,000 past – 3 years, $750,000 future – 10 years).
Apparently, the jurors were impressed with Bacon’s inability to resume competitive mountain biking, his continuing complaints of pain and disability and the testimony of his medical care providers that he had sustained significant losses of range of motion in his neck and back.
After trial, the defense sought to have the case dismissed but the trial judge declined; he did, though issue a post-trial order reducing the amount of damages to $450,000.
The defense contended that the case should have been dismissed by the trial judge despite the verdict because:
- the accident was minor with very little damage to the cars and Bacon didn’t seek medical treatment until a week after the accident
- plaintiff was out of work for only five days, resumed his usual activities quickly, had not undergone significant medical treatment and would not require surgery
- there was only one herniated disc (in the back), it pre-dated the accident and was consistent with someone who, like plaintiff, had been an avid mountain biker for the prior nine years
In Bacon v. Bostany (2d Dept. 2013), the court agreed with the defense in reversing and dismissing the entire case. It did so because the testimony “did not fulfill the objective evidence requirement” under the cases interpreting Insurance Law Section 5102 [see below] since there was no explanation as to what objective tests were used to determine Bacon indeed had significant limitations in the range of motion in his spine.
This case illustrates the difficulty facing plaintiffs with spinal injuries who sue to recover pain and suffering damages in New York courts.
Their problem, apart from their injuries, is that Insurance Law Section 5104 limits their right to recover damages to those cases involving “serious injuries.”
The definition of “serious injury” is set forth in Insurance Law Section 5102 (d), as follows:
- “Serious injury” means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.
Eric Turkewitz has discussed this statute and its ramifications at New York Personal Injury Law Blog: “This significant restriction on bringing suit was a trade-off for the guaranteed health benefits of the No-Fault Law that started in 1973 and was amended in 1977 to the present formulation.” Others discuss this here (Huntington attorney Carol Schlittt) and here (Buffalo attorney Roy Mura).
Turkewitz suggests that the law can work in the counter-productive manner of encouraging people to stay home and not work. He notes that a fractured pinky that heals in a few weeks would qualify as “serious” under the law, but soft tissue back pain that lasts for years might not, especially if objective results don’t turn up on radiological studies or the physician does a poor job documenting the injury and the specifics of the limitations.
- As indicated, the so-called “Threshold Law” applies only to car accident cases in New York. Had this verdict been in a construction or slip and fall accident case, the verdict would have been upheld since the grounds relied upon by the appellate court in its decision dismissing the case would’ve been inapplicable.