On March 14, 2013 John Gore was stopped at a red light in Pleasantville when a car from behind, driven by Melissa Cardany, struck his car. Mr Gore, then 47 years old, was taken by ambulance to the local hospital where he complained of pain in his neck, back and left shoulder.
Gore sued the other driver seeking money damages for his pain and suffering, lost earnings and medical expenses related to the accident. On November 5, 2014, he was granted summary judgment as to liability and the matter proceeded to a trial on damages only.
The Westchester County jury determined that plaintiff’s injuries did not meet any of the threshold categories under Insurance Law Section 5102 and they accordingly awarded him nothing at all for pain and suffering (or future medial expenses). They did, though award him damages for lost earnings in the sum of $906,000 ($156,000 past – three years, $750,000 future – 15 years).
The defendant made a post-trial motion asking the judge to set aside the verdict and direct judgment in her favor as a matter of law or, alternatively, to direct a new trial. Essentially, the defendant argued that because the jury found that plaintiff had not sustained a permanent or significant injury, and was not entitled to any future medical expense award, the award of $906,000 for lost earnings was speculative and there should be no lost earnings award at all. Plaintiff, who never returned to work (he’d been a residential supervisor at a home for at risk teenagers) argued that there was sufficient medical testimony to establish that he was disabled and permanently unable to perform his job duties.
The trial judge granted the defendant’s motion and set aside the verdict as to all damages.
In Gore v. Cardany (2d Dept. 2018), the appellate court reinstated the award for past lost earnings in the sum of $156,000 while affirming the trial judge’s decision to vacate the award for future damages.
Here are the injury details:
- treated and released from the ER on the day of the accident and same five days later at a different hospital
- chiropractic treatment began 11 days after the accident and continued for about two years
- three epidural injections in lower back and neck in connection with bulging discs
- left shoulder arthroscopic surgery on 4/29/14
Defense doctors testified that plaintiff’s shoulder complaints were degenerative and pre-existing (in view of osteophytes as shown on an MRI) and he was not disabled either before or after his surgery which was merely a shaving of the congenitally deformed acromion and a debridement of some inflamed tissue. They also contended that plaintiff’s neck and back complaints were non-accident related, degenerative and typical for a man of plaintiff’s age. Post-trial, Plaintiff did not contest the jury’s findings as to Insurance Law Section 5102 and their resulting decision to award no damages for pain and suffering.
Plaintiff had been earning $52,000 a year and his job entailed supervising adolescents but there was no testimony that it involved heavy labor or heavy lifting and none of his doctors testified that they advised him to stop working permanently. Plaintiff testified that his position had been eliminated about six months after the accident and his on-line searches for new employment had been fruitless.
- Defense counsel argued in his summation that plaintiff was entitled to no award at all for any damages; plaintiff’s counsel requested $450,000 for pain and suffering damages plus $900,000 for lost earnings.
- There was no expert vocational rehabilitation testimony.