On October 3, 2011, Jessica Iovino was a pedestrian crossing a street in Brooklyn when the side mirror of a left turning vehicle struck her left arm.
In her ensuing lawsuit, a Kings County jury found that the accident was fully the fault of the driver and the matter then proceeded to a trial on damages only. The jury awarded plaintiff pain and suffering damages in the sum of $25,000 (past only – two and a half years).
The trial judge denied plaintiff’s post-trial motion seeking a new trial on damages and in Iovino v. Kaplan (2d Dept. 2016), the appellate court affirmed the judgment.
As indicated in the decisions, plaintiff underwent arthroscopic surgery on her left shoulder but there was a dispute as to whether plaintiff required the surgery because of a torn labrum or whether she merely had mild bursitis (and the surgery was not required).
In addition, since this case implicated New York’s “No Fault Law” (Insurance Law Section 5102), in order to recover any damages at all for pain and suffering, plaintiff had to prove that her injuries met at least one of the so-called nine threshold categories. The jury found she had not sustained a permanent consequential limitation or a significant limitation of use of her left shoulder injury, only that she was unable to perform her usual and customary activities for 90 out of the 180 days after the accident.
The impact did not knock Ms. Iovino to the ground but it did cause immediate excruciating pain in her arm and shoulder. Ms. Iovino declined an ambulance and her mother came from their home a few blocks away and they walked home together. The next day, she sought emergency room treatment at the local hospital where her shoulder was examined, she was given a prescription for pain medication and she was advised to follow up with a doctor should her pain persist.
Plaintiff treated with two orthopedic surgeons – first, about a week after the accident, with David R. Capiola, M.D. and thereafter with Dov Berkowitz, M.D. Dr. Capiola recommended physical therapy (which plaintiff underwent for a month) and an MRI (which was performed on October 20, 2011). Plaintiff switched to Dr. Berkowitz about five weeks after the accident; he too prescribed physical therapy but found significant range of motion deficits and recommended surgery which Ms. Iovino underwent on December 28, 2011.
Much of the dispute as to whether the surgery was needed centered around the MRI which, both Dr. Berkowitz and defendant’s experts agreed, did not show a labral tear. Nonetheless, Dr. Berkowitz testified that he recommended the surgery based upon plaintiff’s continuing pain, decreasing range of motion and positive results from both a Neer’s test and an O’Brien’s test. And, the doctor testified that during the surgery he actually saw the labral tear.
The defense expert orthopedic surgeon, Edward Toriello, M.D., testified that the surgery was not needed, there was no labral tear (at most, some minor fraying) and plaintiff sustained merely a shoulder strain and bursitis that had resolved.
Ms. Iovino, a 35 year old executive assistant for a private equity firm, missed one week of work after the accident, then lost her job but returned to a similar job a month after her surgery and at trial was still working there. When asked about her current condition, she testified that she takes over-the-counter medications to control daily shoulder pain but was able to work, was “not saying that I have a disability,” has “limitations as to what I can do” but can and does lift her three and seven year old children.
- In his closing argument, plaintiff’s attorney asked the jury to award $400,000 for past pain and suffering plus $800,000 for the future. Defense counsel suggested $15,000 for the past and nothing for the future.
- The defense argued that plaintiff should have called Dr. Capiola as a witness since he treated plaintiff (a) before and after a prior accident in 2008 in which she sustained a right shoulder injury requiring surgery and (b) after the current accident. The trial judge agreed and included in his jury charge a so-called missing witness instruction advising the jurors that they may conclude Dr. Capiola’s testimony wouldn’t support the plaintiff’s position on the question of what her physical condition or injury was both before and after the current accident.
- During trial, the attorneys argued over certain prospective evidentiary rulings being requested of the judge. At one point, the judge, Francois A. Rivera, admonished the attorneys for interrupting him and told them: “The next time either counsel interrupts the Court or each other, I am going to have to start considering whether sanctions are appropriate.” He then instructed the attorneys that upon their return to court the next day they were to produce and demonstrate their personal checkbooks and that he “would like the feel of it on the side of your jacket throughout the day so it makes it very easy for me to impose sanctions ….” No sanctions were ever imposed.