On April 30, 2010 Patricia Telesco was driving her 2003 Hummer motor vehicle on Route 55 in Lagrangeville when she was struck head on in her lane by a 1998 Oldsmobile driven across the double yellow line by Kyle Blackman on his way to classes at Arlington High School. Ms. Telesco was taken from the scene by ambulance to the local hospital complaining of back and leg pain.
Ms. Telesco, then 41 years old, sued Mr. Blackman (and his father, as his vehicle’s owner) and in October 2013 a Dutchess County jury determined that the defendant driver was fully liable for the accident.
A different jury then heard testimony in a damages only trial and on December 13, 2013 plaintiff was awarded pain and suffering damages in the sum of $60,000 (all past – three years, eight months).
Plaintiff appealed claiming that the damages award was inadequate. In Telesco v. Blackman (2d Dept. 2016), the appellate court declined to disturb the amount of damages and affirmed the jury’s award.
As set forth in the court’s decision, Ms. Telesco sustained a thoracic disc herniation for which she underwent surgery. Here are the injury details:
- disc herniation at T12-L1 with associated annular tear and indentation of the spinal cord
- surgery on 9/23/10 to remove disc material and stabilize the joint – a T12-L1 laminectomy and microdiscectomy with interbody fusion with pedicle screws and two rods
- three day hospital admission for the surgery with emergency re-admission shortly thereafter for four more days due to pain
- confined to home for four months after second hospitalization
- two scars at surgical site
- unable for one year to resume customary homemaking activities or drive a car
- continuing inability to resume kayaking, snowmobiling or ride a horse
The issue on appeal related to New York’s CPLR 5102 (d) – the so called serious injury threshold statute.
The jurors were presented with verdict sheet questions requiring them to state whether plaintiff’s injuries met either the statutory significant limitation of use of a body function or system category or the 90/180-day category (a non-permanent injury that prevents one from performing substantially all of the material acts that constitute one’s usual and customary daily activities for not less than 90 days in the 180 days immediately following the accident). The jurors ruled that plaintiff had not sustained a significant limitation of use but had met the 90/180-day standard.
Plaintiff’s normal pre-accident routine involved activities related to the 16 acre family farm she maintained with her husband. Each day, she’d pick up food from a nearby store to feed the farm animals (calves, sheep and chickens), she did secretarial work for her husband, cared for her son and did housework such as vacuuming and washing clothes. The defense argued that within one year, plaintiff resumed all of these activities, she sought no medical care for this matter for more than two years before trial and her only physical complaints as of trial were that on cold and rainy days she has “a little sharpness” in her back and has to be careful walking on uneven ground.
Neurosurgeons for both parties testified by way of videotape.
- Plaintiff’s surgeon testified that within four months of the accident, plaintiff did not have any documented significant limitations and within a year her radiating pain had resolved and her prognosis was excellent. He made no mention of any objective findings as to limitations or restrictions and even stated that the fusion he performed “may or may not be” a significant limitation of that portion of the spine.
- The defense expert opined that Ms. Telesco had “no significant limitation” as a result of her surgery: “having a total of 17 levels between the thoracic spine and lumbar spine, fusing one should not result in any significant loss of range of motion in general ….”
- The defendant claimed that a yellow jacket bee had entered his car 10 seconds before the crash and that he’d tried to swat it away when he lost control of his vehicle. Plaintiff’s motion for summary judgment as to liability was denied in 2012 when the trial judge found that it was for a jury to determine whether the distraction of the bee provides a non-negligent explanation for the accident.
- Plaintiff’s husband asserted a loss of services claim but was awarded nothing.