On November 9, 2009 Vincent Taurone was a front seat passenger in a minivan on the Saw Mill River Parkway in Chappaqua. After his vehicle stopped because of a deer carcass in the roadway, another car smashed into the rear of the minivan propelling it 35 feet forward.
Mr. Taurone, then 51 years old, had sustained prior traumatic incidents in which he’d injured his neck and, as a result, just 28 days before this accident he underwent major surgery – an anterior cervical discectomy and fusion at C5-6 and C6-7 with cortical bone implants and the insertion of a titanium plate and seven screws.
In Mr. Taurone’s ensuing lawsuit against the owner and operator of the other vehicle, defendants conceded liability and the trial was limited to the amount of damages only.
- Plaintiff contended that the car crash caused significant new and aggravated injuries to his spine.
- Defendants argued that (a) plaintiff’s new or aggravated injuries were not serious enough to meet the threshold under Insurance Law Section 5102 and (b) that the new/aggravated injuries were solely the result of plaintiff’s prior accidents or a fall out of bed that occurred eight days after the crash.
On May 31, 2013, the Westchester county jury found for the plaintiff and awarded him pain and suffering damages in the sum of $1,000,000 ($400,000 past – 3 1/2 years, $600,000 future – 15 years). Defendants appealed urging that the statutory threshold had not been met and therefore the judgment should be vacated. In Giardina v. Barasch (2d Dept. 2015), the appellate court rejected the defendants’ contentions and affirmed the judgment.
The court’s decision focused on the issue of defendants’ in-trial application for an adjournment so that a second physician could be brought in to rebut the testimony of plaintiff’s physicians. The trial judge initially granted the request but when the defense expert became unavailable the judge denied a second adjournment request. This, the appellate court ruled, was well within the trial judge’s discretion and not a reason to overturn the judgment.
The damages issues are nowhere addressed in the appellate court decision except to the extent of a statement that deemed defendants’ remaining contention “without merit.”
Following the accident, Mr. Taurone was admitted to the hospital for six days where he was immediately seen by the neurosurgeon, Thomas Lee, M.D., who had operated on him 28 days before. Dr. Lee testified that the car accident caused further injury to Mr. Taurone’s C-6 vertebrae and that as a result the plate and screw system he had installed weeks before had “pulled out on the bottom” and dislodged thus requiring new surgery on January 6, 2010: removal of the prior instrumentation and a revision anterior cervical interbody fusion at C5-6 and C6-7.
Unfortunately, plaintiff’s spine deteriorated further – a result not unusual with the type of revision surgery he underwent – and a third surgery was required on August 21, 2012 – a complex posterior laminectomy at C4-5 and C5-6. This was done by Reza Yassari, M.D., who testified that plaintiff had severe myelopathy and that his radiating pain was so bad that he couldn’t use one hand. The surgery he performed would not, he testified, stop the progressive deterioration of plaintiff’s spine but would slow it down.
The defense case rested upon the testimony of radiologist David Fisher, M.D. who opined that there was neither a new nor an exacerbated injury to plaintiff’s spine as a result of the November 9, 2009 accident and in particular that the accident did not dislodge the previously implanted plate and screws. In summation, defendants’ attorney contended: “This is a moderate accident with someone who had a condition that existed before, existed at the time of the accident and went on and probably will go on into the future.”
- Defendants did not challenge the amount of damages on appeal except to the extent they argued (unsuccessfully) that there was insufficient proof to meet the statutory threshold under the Insurance Law.
- Mr. Taurone suffered a heart attack and died on February 14, 2015 at the age of 56 years (the caption of the lawsuit was then changed to reflect the name of the executor of his estate).
- Until 2006, Mr. Taurone worked as a limousine driver and a security guard. The prior injuries that necessitated Mr. Taurone’s surgery before this car accident were a 1989 motor vehicle incident and a 2006 assault. In each, he sustained neck injuries and lost time from work but neither required surgery until 2009.
- In the 1989 accident, Mr. Taurone was working as a driver and bodyguard for the rock band Metallica. He and the band’s drummer got out of the limousine after the accident and they were in the roadway when another vehicle hit Mr. Taurone as he pushed the drummer away.
- The jury also awarded plaintiff lost earnings damages in the sum of $275,000 ($95,000 past, $180,000 future – six years).