On November 9, 2011, Stenneth Knight, then 43 years old, was driving to work when he was stopped at a red light and his car was rear-ended on Rockaway Parkway in Brooklyn. After a trial on liability, Mr. Knight was granted a directed verdict finding the other driver fully at fault and the case proceeded to a trial on damages only.
The Kings County jury determined that plaintiff sustained both a significant limitation of use of a body function or system and a permanent consequential limitation of of use of a body organ or member (two of the threshold categories under Insurance Law Section 5102, any one of which is required in order to recover pain and suffering damages in New York car accident cases). Plaintiff was then awarded pain and suffering damages in the sum of $80,000 (past only – three and a half years).
The jury was not permitted to award any future damages because the trial judge precluded plaintiff’s expert orthopedic surgeon from testifying as to his opinion regarding prognosis and future medical treatment.
On appeal in Knight v. Barsch (2d Dept. 2017), the trial judge’s preclusion order was ruled erroneous and it was held that the jury should have been permitted to hear plaintiff’s expert’s opinions and award damages for future pain and suffering. Accordingly, the appellate court ordered a new trial on the issue of damages for future pain and suffering.
As indicated in the decision, plaintiff sustained several bulging discs and a a meniscal tear in his right knee. Here are the injury details:
- Right Knee – complete tear of medial meniscus
- Cervical Spine – bulging discs at C4-5, C5-6 and C6-7
- Lumbar Spine – large disc protrusion at L4-5 and two smaller ones at L2-3 and L5-S1
Plaintiff drove his car from the scene to work (he was a chef) and first received medical treatment at an emergency room two days later complaining of knee, neck, back and shoulder pain. The next day, he began a two year course of three times a week treatment with a chiropractor. He also treated with an orthopedic surgeon (for eight months), a pain management physician (who, over the course of a year, administered a series of facet nerve block injections in plaintiff’s neck and back) and a physical therapist.
Plaintiff’s only medical witness was his expert orthopedic surgeon, Jerry Lubliner, M.D., who examined plaintiff one time, in 2014. Plaintiff testified that he still had pain and limitations in his neck and back a few days a week but that his knee pain was even more often, was the worst and required him to use a cane several days a week. As a result, he claimed, he could no longer enjoy playing cricket, jogging or dancing in church and he could no longer help his wife with the laundry and other activities, nor could he cook any longer without using a high chair to sit.
None of plaintiff’s injuries required surgery as of the trial date although Dr. Lubliner testified that plaintiff has significant range of motion limitations that will be a problem for the rest of his life and he would have testified that Mr. Knight has permanent pain in his knee and spine and that he “needs operative arthroscopy of the right knee and possible meniscal repair/menisectomy.”
The defense contended that plaintiff had pre-existing degeneration in his spine and knee, his injuries did not meet the serious injury threshold and there should be no award of any damages at all.
- In her closing argument, plaintiff’s attorney asked the jury to award $150,000 for her client’s past pain and suffering.
- Plaintiff left his job as a chef because he had to stand all of the time and it was too painful. As of trial, he was working as an aide at a skilled nursing facility (where he claimed he was allowed to sit down for half of his shift). Plaintiff missed only one or two days from work and made no claim for loss of earnings.
- Plaintiff’s treating orthopedic surgeon, Eric Senat, M.D., was not called to testify. The defense claimed that in 2014 Dr. Senat was found guilty of health care fraud and that the jury should be able to see a document from a workers compensation board to that effect because before testifying Dr. Lubliner reviewed Dr. Senat’s treatment records and Dr. Senat’s credibility (and the reliability of his records) should be considered by the jury. The trial judge would not allow the document in and the appellate court, in finding the parties’ “remaining contentions” to be without merit, agreed.