On June 23, 2008, Ronald Weathers was in a car accident when the Dodge Neon he was driving was struck by a left turning SUV driven by Alex Rios.
The accident scene – the intersection of Shell Road and Avenue Z in Brooklyn:
Mr. Weathers, then a 55 year old automobile mechanic for many years who’d been laid off six months earlier when his place of employment closed down, sustained a back injury and was in pain but declined medical treatment. Instead, his wife and son came to the scene, drove him home and he sought treatment at a local hospital the next day and from a physician the day after that. During the next six months or so, Weathers treated with doctors and physical therapists but his pain persisted.
In the lawsuit he commenced in 2010, Weathers was granted summary judgment on liability. The matter then proceeded to a damages only trial.
Defendant argued that plaintiff’s injuries from the accident were were merely strains or sprains of his back that did not merit any pain and suffering award at all. After deliberations, though, on April 17, 2012, the Kings County jury, in response to the judge’s charge, found that Weathers had sustained a back injury that was a significant and permanent consequential limitation of use and then awarded plaintiff pain and suffering damages in the sum of $1,450,000 ($450,000 past – four years, $1,000,000 future – 20 years).
The defendant appealed arguing successfully that the award was excessive. In Weathers v. Rios (2nd Dept. 2014), the appeals court determined that the proper amount for pain and suffering damages in this case is $800,000 ($350,000 past, $450,000 future).
The court’s decision neglects to inform readers about the injuries sustained. Here are the injury details:
- herniated and bulging discs at L3-4 and L4-5
- physical therapy for three months
- three epidural steroid injections
- epidurogram (without anesthesia) – a painful diagnostic procedure in which contrast dye was injected into the disc space under fluoroscopic guidance
- percutaneous discectomy at L3-4 and L4-5 followed by additional physical therapy and pain management treatment
- continuing back pain (though no longer radiating to leg) with respect to which plaintiff’s surgeon, pain management specialist Andrew Davy M.D., testified that he proposed implantation of a spinal cord stimulator
- inability to lift heavy objects or to bend or sit for long periods of time
- diminished ability to play with grandchildren, take walks with his wife or cook
A percutaneous discectomy is a minimally invasive technique used to surgically treat disc bulges, protrusions and small contained herniated discs. The surgeon goes in through the skin with a needle like instrument to remove disk material that may be pressing against nerve roots causing pain. The procedure can be performed in an outpatient environment with most patients returning to work within a week. Here is an illustration of the procedure in which an endoscope is inserted through the skin to remove herniated disc material:
The defendant highlighted several facts that he contended demonstrated that whatever injuries plaintiff had were from degenerative conditions in his spine and that the jury’s pain and suffering awards were excessive:
- Plaintiff stopped seeing his two treating doctors a year before trial and his physical therapists three and a half years before trial.
- Plaintiff’s medical history before the accident included rheumatoid arthritis of his left knee, both wrists, hands and his fingers for which he took weekly pain medication, diabetes, thyroid disease and prostate cancer (for which he underwent radiation treatment that began a month before the accident).
- The surgery plaintiff underwent was minor involving no hospitalization, general anesthesia or implanted hardware or grafts.
- In their summations, plaintiff’s attorney asked the jurors to award $1,450,000 for pain and suffering (the exact amount they awarded) whereas defense counsel argued that plaintiff’s injuries did not merit any pain and suffering award at all.
- At the time of trial, defendant’s offer to settle was $15,000 whereas plaintiff’s demand was $100,000 (the defendant’s insurance policy limit). Plaintiff’s counsel contended that the defendant’s insurance company refused to negotiate in good faith and he placed a statement on the record to that effect. Contending that the carrier should have known a verdict well in excess of its policy limit would ensue and thereby expose its insured to personal liability, plaintiff claims that the carrier should be ordered to pay the full final verdict sum, even though it’s well in excess of the policy limits.
- Plaintiff sought unsuccessfully to mention to the jury that the defendant’s expert radiologist had her license suspended in 1987 when she forged another doctor’s name on prescriptions. The trial judge ruled that the incident was too far in the past and thus inadmissible.