On October 20, 2011, at about 6:20 p.m., Estelle Peterson boarded a city bus at the Gateway Mall in Brooklyn. After she sat down in a single seat facing forward by the back door, the bus made a sharp turn causing a half gallon milk bottle she’d bought to slide across the floor. The bus then came to a stop and Ms. Peterson went to retrieve her milk but then the bus suddenly made a heavy jerk and she was thrown to the ground.
In the ensuing lawsuit against the transit authority and its driver, a Kings County jury found defendants fully at fault for the accident and they awarded the then 68 year old retired plaintiff pain and suffering damages in the sum of $2,300,000 ($800,000 past – 3 1/2 years, $1,500,000 future – 17 years).
In Peterson v. MTA (2d Dept. 2017), the appellate court ruled that $800,000 for past pain and suffering is reasonable but that $1,500,000 for future pain and suffering is excessive. Therefore, the court reduced the future damages award to $800,000. Thus the total pain and suffering damages award stands at $1,600,000.
As set forth in the decision, plaintiff injured both shoulders (and her lower back).
Here are the injury details:
- ambulance transport to local emergency room with complaints of pain in her head, neck and shoulders; treated and released with pain medication prescription
- chiropractic treatment started four days later, continuing for one year
- referred to orthopedic surgeon four months after the accident; MRI discloses torn rotator cuff and labrum in left shoulder
- arthroscopic surgery left shoulder on 4/12/12 (in which the surgeon visualized the biceps tendon sheared off the labrum), followed by physical therapy for one year
- two years later, MRI right shoulder disclosed torn rotator cuff there as well (from overuse) as well as a tear of the supraspinatus muscle and fusion in the subacromial space
- arthroscopic surgery right shoulder on 1/27/14, followed by seven months of physical therapy
- permanent significant range of motion deficits in both shoulders
- continuing intense pain (sometimes radiating down her arms), spasms and limitations in both shoulders affecting her ability to carry groceries (cannot carry heavy bags), cook, clean the house, play with her grandchildren and travel; unable to resume jogging
- continuing intense lower back pain, despite cortisone injections, preventing plaintiff from sitting for a long period of time in one position
Plaintiff’s treating orthopedic surgeon testified that Ms. Peterson should expect no improvement or deterioration in either shoulder. The defendants’ expert examined plaintiff about 20 months after the accident (right before plaintiff’s right shoulder surgery). He opined that the left shoulder surgery was successful although it left plaintiff with a mild disability and more than trivial range of motion deficits.
- Plaintiff’s pre-trial settlement demand was $350,000. The offer was $150,000.