On June 12, 2009, 32 year old Jason Kowalsky was a field technician for Verizon standing at the back of his parked van when he was hit by a pick-up truck owned by the County of Suffolk.
In his ensuing lawsuit, Kowalsky’s motion for summary judgment as to liability was granted and in August 2014 the case proceeded to a damages only trial.
Plaintiff was awarded pain and suffering damages in the sum of $1,050,000 ( $200,000 past – five years, $850,000 future -41 years). The trial judge ordered a reduction of the future damages award to $200,000. On appeal, in Kowalsky v. County of Suffolk (2d Dept. 2016), the entire pain and suffering award has been reinstated.
As set forth in the court’s decisions, plaintiff sustained a back injury that required surgery. Here are the injury details.
- emergency transport to local hospital with severe overall body pain and knee placed in immobilizer; discharged to home by ambulance but returned to the hospital same day and two days later complaining of leg pain
- right knee arthroscopic meniscal repair surgery on 12/2/09; partially torn anterior cruciate ligament and chondromalacia observed
- knee brace for one month, crutches for three months
- low back pain radiating to lower extremities due to annular tear at L4-5 requiring physical, injection and medication therapies and on 6/3/12 lumbar laminectomy surgery and a spinal fusion at L4-5 with screws, rod and a bone graft
- at the time of trial, plaintiff had limited range of motion in his spine, chronic pain syndrome, was unable to lift or bend and the side effects of extensive continuing opioid pain medications (he was taking Oxycodone, Methadone, Flexeril, Ibuprofen and Ambien) left him sluggish, groggy, cognitively impaired, with extremely limited daily activities and unable to return to any work at all
- all injuries were deemed permanent and plaintiff’s prognosis was poor for control of his chronic pain
The jury also awarded economic damages in the sum of $4,038,000 ($2,625,000 for lost earnings and $1,413,000 for lost benefits). The trial judge ordered substantial reductions of all future economic (and future pain and suffering) losses but the appellate court reinstated them all. The jury award for past lost wages was at the rate of $75,000 per year which was about what plaintiff had earned in a recent year; future lost earnings (over a 24 year period) were based upon increases plaintiff claimed he would have enjoyed over the years. The defendants’ main argument as to the lost earnings awards was that plaintiff could perform some form of sedentary work, according to their experts. As the court noted, though, the jury was free to adopt the opinions of plaintiff’s expert physicians who opined that he could not return to any form of work, sedentary or otherwise (mainly due to the debilitating effects of continuing narcotic pain medications).
- Defendants raised on appeal an allegation that a year before trial plaintiff pled guilty to felonious grand theft and that any claims of accident related inability to work are extremely suspect. Plaintiff argued that this claim was not raised at trial and should therefore not be considered by the appellate court. It was not mentioned in the decisions.