On July 1, 2013, the car Theresa Lamphron-Read was driving on Chili Avenue in Rochester was struck head on by a car whose driver had lost control and crossed into her lane.
On November 9, 2015, a Monroe County jury awarded plaintiff pain and suffering damages in the sum of $25,000 (all past – 2 1/2 years). Plaintiff’s post-trial motion arguing that the damages award was inadequate was granted and the trial judge ordered an increase to $130,000 ($65,000 past, $65,000 future).
In Lamphron-Read v. Montgomery (4th Dept. 2017), the $130,000 award has been affirmed.
As set forth in the appellate court decision, plaintiff sustained seven non-displaced vertebral fractures – the transverse processes from T5-T9, L-1 and the endplate of a facet at C-4. She was hospitalized for a week but never underwent any surgery nor is any expected.
Plaintiff was required to wear a TLSO (thoracic-lumbar-sacral orthosis) brace for three months.
While it was undisputed that as a result of the crash the then 65 year old plaintiff had permanent paraspinal muscular injuries with chronic activity-related back pain for which there was no available remedy, her fractures healed well and her last medical treatment was one year before the trial.
Plaintiff, retired from her employment in daycare and companion care for seniors, testified that sitting and walking aggravate her back pain, she has difficulty falling asleep and she experiences pain with significant physical activities. Her expert orthopedic surgeon opined that plaintiff would always suffer from “activity related pain,” a term he said accurately described plaintiff’s condition as opposed to chronic, unrelenting pain.
In arguing for a return to the jury’s $25,000 award, defendants noted that plaintiff was able to mow her lawn, walk her dog and do grocery shopping and that the only activities she could not perform are painting and climbing a ladder. They argued that plaintiff made a very good recovery and, at most, would have minor intermittent mid-back pain depending upon her activity level.
- In summation, plaintiff’s counsel asked the jury to award $40,000-$80,000 for past pain and suffering damages plus $100,000-$200,000 for future pain and suffering. In her post-trial motion seeking additur, plaintiff sought $50,000 for past pain and suffering and $100,000 for the future.
- Defendants presented no witnesses at the damages trial and their failure to call their orthopedic surgeon who examined plaintiff resulted in a missing witness charge. They claimed that their doctor’s testimony would have been duplicative since his findings were virtually identical to the findings of plaintiff’s doctor.
- Plaintiff’s medical expert testified in the absence of her treating doctor because he had moved to Texas and was unavailable.