On February 23, 2006, Suzanne Kusulas was a front seat passenger in her boyfriend’s car which was stopped at a red light on 16th Street at its intersection with Prospect Park West in Brooklyn when it was hit hard from behind by a car owned and operated by Diane Saco. Upon impact, Ms. Kusulas, although seat-belted, was thrust back and forth striking her head on the dashboard.
As a result, Ms. Kusulas, then 40 years old, sustained significant neck injuries. In her ensuing lawsuit, Ms. Kusulas was granted summary judgment on the issue of liability and the matter proceeded to a damages only trial in Brooklyn.
On June 12, 2012, the jury rendered a verdict awarding pain and suffering damages in the sum of $2,000,000 ($1,000,000 past – six years, $1,000,000 future – 36 years). The defendant argued that the award was excessive but the trial judge declined to disturb the award.
In Kusulas v. Saco (2d Dept. 2015), the $2,000,000 pain and suffering award has been affirmed.
As set forth in the court’s decision, Ms. Kusulas sustained herniated cervical discs that required two spinal fusion surgeries and left her with chronic pain. Here are the injury details:
- ambulance to hospital with complaints of neck pain, treated and released
- follow-up three weeks later with orthopedic surgeon
- conservative treatment for unremitting radiating pain for 20 months including physical therapy and painful steroid injections
- surgery #1 on 11/27/07 – anterior cervical discectomy and fusion at C4-5 and C5-6 with allografts and instrumentation (screws and a titanium plate)
- continuing unremitting (but no longer radiating) neck pain
- new disc herniation and degeneration at C6-7 caused by non-union in first surgery
- surgery #2 on 5/12/09 – three level posterior cervical fusion from C4-C7 with screws, rods and a bone graft from plaintiff’s pelvis
- continuing neck pain despite active pain management treatment including extensive medication (Percocet and Fentanyl patches)
- almost 50% permanent loss of range of motion
- unable to resume previously enjoyed athletic activities including bicycle riding, canoeing and exercising at gym
Plaintiff had been a cigarette smoker for 15 years before her car crash and was addicted to nicotine. Her doctors advised her to quit smoking for six months before and after surgery for which she was prescribed and took Chantix, a smoking cessation drug; however, she was unsuccessful in quitting smoking completely.
Defendant argued at trial and on appeal that plaintiff’s failure to stop cigarette smoking likely contributed to her needing a second surgery. Plaintiff’s treating surgeon, Andrew Hecht, M.D., testified that there would be a small chance of non-union for anyone undergoing the first surgery and plaintiff’s smoking may have increased the chance of developing a non-union but plaintiff’s smoking had nothing to do with her spine’s degenerative changes and the new herniation that required her to undergo a second surgery.
- The jury also awarded medical expenses in the sum of $1,369,066 ($216,066 past – six years, $1,153,000 future – 36 years). After the trial, the parties settled the collateral source issue with plaintiff waiving the past medical expense award and defendant stipulating to the future medical expense award of $1,153,000.
- Defendant had $1,300,000 of insurance coverage with Government Employees Insurance Company (“GEICO”) – a $300,000 primary policy plus $1,000,000 of excess coverage. Prior to trial, defendant offered $300,000 to settle and during jury deliberations it offered $1,300,000. Plaintiff would have accepted $1,300,000 to settle but only with 9% per annum interest added from the date of summary judgment almost two years earlier. GEICO refused.
- GEICO made a partial payment on the verdict in the sum of $1,283,500 (the full policy limits less $16,500 already paid to another person injured in the accident) but plaintiff maintains the position that she is owed pre-judgment interest and asserts that GEICO acted in bad faith in its conduct in defending the lawsuit such that it should be compelled to pay the entire verdict (even though it exceeds the policy limits). These matters are unresolved and are the subject of pending litigation in the U.S. Distinct Court for the Eastern District of New York (GEICO v. Saco – Case # 12-CV-5633 and Kusulas v. GEICO – Case # 15-CV-634).
- Plaintiff was unable to return to work as a court clerk for about a year on and off between the two surgeries but she used her accumulated sick time and made no loss of earnings claim.