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Judgment Affirmed in Burn Injury Case

Posted in Burn Injuries

On August 15, 2013, Lillyan Rosenberg received her third and final acupuncture treatment for groin pain from Jing Jiang at Jing-River Accupuncture. In addition to acupuncture needles, Dr. Jiang used a heat lamp that caused third degree burns and permanent scarring,

In the ensuing lawsuit, the 87 year old plaintiff claimed that the heat lamp should not have been used, she was left unattended and the doctor failed to respond to her complaints regarding the lamp. The defendants conceded liability and in a damages only trial, on January 27, 2016, the Queens County jury awarded plaintiff pain and suffering damages in the sum of $175,000 ($150,000 past – 2 1/2 years, $25,000 future – five years). Her husband was awarded $25,000 (past only) for  his loss of consortium claim.

The defendants appealed claiming that they did not get a fair trial because (a) some questions plaintiff’s attorney asked were leading and (b) plaintiff’s expert dermatologist testified regarding medical history given to him by the plaintiff.

In Rosenberg v. Jiang  (2d Dept. 2017), both defense claims were rejected by the appellate court and the judgment was affirmed.

Defendants challenged the severity of plaintiff’s injuries only through cross-examination (about possible cosmetic procedures that might lessen the visibility of scars) but they did not offer any expert medical testimony. They suggested that Ms. Rosenberg’s wounds took longer to heal because she is a diabetic and they noted that her scars are not generally visible because they are on a part of plaintiff’s body that is covered by clothing. Defendants did not, though, challenge the amount of the damage awards either in a post-trial motion or on appeal.

Inside Information:

  • In closing arguments, plaintiff’s counsel asked the jury to award $800,000 whereas defendants’ counsel suggested an award “in the neighborhood of $50,000.”
  • Plaintiff’s appellate counsel, Arnold E. DiJoseph, III, argued that the appeal was frivolous in view of the conceded liability, “terrible” burns and permanent scarring and he argued that even if a new trial were ordered, defendants  “could not have done better than they did” already.