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Jury Verdict Declining to Award Any Pain and Suffering Damages Upheld in Car Accident Case

Posted in Back Injuries, Neck Injuries

On December 17, 2011, Ebony Stanford was a rear seat passenger in a taxicab that was involved in a crash with another vehicle in Manhattan on the FDR Drive near the 53rd Street exit.

Ms. Stanford, then a 33 year old security officer at Harlem Hospital residing in the Bronx, sued both drivers seeking an award of pain and suffering damages for injuries to her cervical and lumbar spine.

In 2015, plaintiff’s motion for summary judgment was granted on the issue of serious injury based upon the so-called 90/180 category under Insurance Law Section 5102. Accordingly, at the trial in 2016, the jury was instructed that “the court has already determined that plaintiff sustained a non-permanent medically determined injury that prevented [her] from performing her usual and customary activities for 90 out of the 180 days immediately after the accident.”

The Bronx jury returned a verdict finding the two drivers negligent, apportioning their respective shares of fault and awarding plaintiff $14,400 for her past loss of earnings.

The jury awarded nothing at all for plaintiff’s pain and suffering, a determination that was upheld on appeal in Stanford v. Rideway Corp. (1st Dept. 2018).

As indicated in the appellate court decision, the trial judge found that “plaintiff’s evidence was not compelling” and the jury found that plaintiff did not sustain either (a) a permanent consequential limitation of use of a body organ or member, or (b) a significant limitation of use of a body function or system (two of the serious injury criteria under the statute).

Both plaintiff’s pre-trial motion for summary judgment as to the 90/180 category and the jury’s award of damages for plaintiff’s wage loss were based on plaintiff’s claim that she was entirely unable to work for about four and a half months immediately following the accident.

Here are the injury details:

  • immediate back and neck pain from whiplash
  • ambulance transport to hospital on stretcher with neck brace; treated and released to home after five hours
  • bulging discs at L4-5 and L5-S1
  • three spinal manipulations under anesthesia
  • chiropractic and physical therapy treatment at an outpatient rehabilitation facility for the next four months
  • continuing pain leaving plaintiff unable to lift her six year old daughter, carry heavy groceries or walk fast

The defendants argued that the disc bulges were minimal and degenerative and that there was no evidence of any traumatic injury to the cervical spine. Furthermore, the defendants’ expert orthopedic surgeon (a) diagnosed plaintiff with morbid obesity (she was 5 feet 4 inches tall and weighed 230 pounds at the time) and (b) examined plaintiff and opined that her neck and back were normal and she had no related disabilities.

Plaintiff’s treating orthopedic surgeon opined before trial that she had significant range of motion limitations and permanent lumbar and cervical spine injuries; however, her chiropractor was the only health care provider who testified at trial for her and the jury rejected plaintiff’s position that her injuries met the significant limitation and permanent consequential limitation categories under the statute.

Clearly, this was a case of battling experts and the jurors chose the one they found credible.