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Appellate Court Affirms Large Reduction of Passenger’s Pain and Suffering Award in Shoulder Injury Case

Posted in Shoulder Injuries

On December 15, 2011, Charlotte Thompson was a front-seat passenger in a minivan involved in an accident with another vehicle at the intersection of Elm Drive and Pinewood Road in Roslyn. The other driver was found to be at fault for the accident which caused shoulder injuries to the then 29 year old Ms. Thompson.

In her ensuing lawsuit, Thompson was awarded pain and suffering damages in the sum of $1,150,000 ($400,000 past – four years, $750,000 future – 25 years). The Bronx County trial judge agreed with the defense that the award was excessive and it was reduced to $550,000 ($300,000 past, $250,000 future).

Plaintiff appealed; however, in Thompson v. Toscano (1st Dept. 2018), the reduction to $550,000 was affirmed.

Here are the injury details:

  • Plaintiff declined medical attention at the scene; emergency room treatment next day with injection and medication for pain
  • Follow-up treatment over seven months with orthopedic surgeons, physical therapy and additional cortisone injections
  • Arthroscopic surgery on 9/19/12 to repair labral tear

  • Additional six months of physical therapy
  • 35% permanent loss of range of motion
  • Adhesive capsusulitis (frozen shoulder)
  • Three keloid scars at surgical site
  • Repeat arthroscopy needed within five years to break up scar tissue (if no improvement in plaintiff’s condition)

The defendant’s expert orthopedic surgeon testified that the intra-operative photographs of plaintiff’s shoulder were unclear as to the presence of a labral tear and, in any event, there were no findings on them that “could contribute to the plaintiff’s motor vehicle accident.” Since the expert’s exam took place only a month after plaintiff’s surgery, the expert could not examine plaintiff’s shoulder and did not measure range of motion because plaintiff’s arm was still in a sling.

Inside Information:

  • The lawsuit was tried in Bronx County because that was the county of plaintiff’s residence.
  • Before plaintiff came to the U.S., she’d been the victim of a police crime in Jamaica where she was assaulted, raped and then sustained a gunshot wound to her face requiring complex jaw surgeries. In his opening statement, plaintiff’s attorney mentioned that his client is “on political asylum here from Jamaica.” The judge refused to allow any further mention of the asylum issue.