On March 16, 2013, Alfred Chung was stopped at a red light at 216th Street and White Plains Road in the Bronx when his car was struck in the rear by a vehicle driven by Rachelle Shaw.
In his ensuing lawsuit, Mr. Chung obtained summary judgment determining that the accident was wholly the fault of the other driver and a trial on the issue of damages only began on May 5, 2016. The Kings County jury returned a verdict awarding plaintiff pain and suffering damages in the sum of $25,000 (past only – three years).
Plaintiff appealed arguing that the jury’s award was inadequate. In Chung v. Shaw (2d Dept. 2019), the appellate court ordered that the damages award be increased to $250,000 ($150,000 past, $100,000 future – 19 years).
As set forth in the court’s decision, plaintiff sustained neck injuries from the accident that required spinal fusion surgery. Here are additional injury details:
- first medical treatment 11 days later (with a chiropractor after primary care physician would not treat plaintiff because he did not treat car accident victims)
- five months of several days a week treatment at chiropractic clinic, including physical therapy, acupuncture, massage and steroid injections
- herniated disc at C5-6 with radiculopathy and torn posterior longitudinal ligament
- anterior cervical discectomy and C5-6 fusion surgery with implantation of a metal plate and four screws
Mr. Chung testified that he obtained some relief of his neck pain following the surgery but that it returned and that significant pain with aches and burning in his neck limited his pre-accident activities such as sports with his college age son, helping to take care of his elderly mother, and difficulty lifting, bending and turning.
Plaintiff’s treating surgeon testified that the accident led to all of plaintiff’s neck problems (he had no prior symptoms or spinal trauma), he has developed adjacent segment syndrome (when one or more segments in the spine are fused and no longer move, the motion segments above and below the spinal fusion compensate for lost motion at the fused levels and take on additional stress that may lead to adjacent segment weakness/disease), he has restricted range of motion and signs of post-traumatic arthritis, his prognosis is guarded, he will probably need additional fusion surgery within five years and his disabilities are getting progressively worse and are permanent.
The defendant contended that:
- the accident was extremely minor,
- plaintiff made no complaints of pain until days later,
- no ambulance was summoned and plaintiff drove himself home from the scene,
- plaintiff missed no time from work as a maintenance worker at a park (except for a month after the surgery),
- plaintiff exaggerated his symptoms, and,
- based upon the testimony of her expert orthopedic surgeon, plaintiff did not suffer any causally related permanent injury or disability.
- In defendant’s closing argument, counsel argued that plaintiff’s spinal condition was merely degenerative and not related to the accident in view of pre-surgical x-rays showing things like osteophytes, bone spurs and decreased disc space. He urged the jurors to reject the claim that plaintiff’s injuries or conditions were the result of the car accident.
- In plaintiff’s closing argument, counsel said that degeneration is in each person and it “has nothing to do with the symptom of anything. It’s that herniated disc that was pushing on the spinal cord. That’s what caused the symptoms.” He asked the jury to award $1,500,000 for past pain and suffering plus $3,000,000 for the future.