On December 21, 2012, Terrence Cullen was driving his car on Wantagh Avenue in Hempstead when another vehicle drove through a stop sign on Sarah Drive and smashed into his car. Mr. Cullen, then 53 years old, sustained hand and knee injuries.

In the ensuing lawsuit, the other driver conceded full liability for the crash and the matter proceeded to a trial on damages only.

The Nassau County jury awarded pain and suffering damages in the sum of $25,000 (all past – five years).

In Cullen v. Thumser (2d Dept. 2019), upon plaintiff’s appeal that the damages award was inadequate, the appellate court ordered an increase in the damages verdict to $150,000 ($100,000 past, $50,000 future – 19 years).

Here are the injury details:

• right knee – complex tear of the medial meniscus, requiting arthroscopic partial medial meniscectomy with resection of approximately 50% of the meniscus
• left thumb – ulnar collateral ligament partial tear, resulting in diminished range of motion and strngth

Plaintiff claimed at trial that he had swelling in his knee and hand on good days and when worse, he would take Tylenol and Motrin for pain. He also said he had difficulty gripping things, getting dressed, using tools, exercising and playing softball with his daughter.

Plaintiff’s expert orthopedic surgeon testified that (a) plaintiff had decreased range of motion in his knee (about 10 degrees) and recurring pain that is permanent and (b) his thumb remained incompetent and needs to be surgically sewn up (but would still not be 100%).

Defendant’s expert orthopedic surgeon testified that (a) plaintiff had pre-existing degeneration in his knee (plaintiff conceded he had some pre-existing calcification but noted he was asymptomatic and never treated) and (b) it was unlikely that the car accident caused his knee injury. The defense expert conceded that plaintiff had an unstable thumb that could become chronic without surgery but was unable to opine whether the accident caused plaintiff’s thumb injury.

Inside Information:

• In return for defendant’s concession as to liability (and that plaintiff’s injuries satisfied the Insurance Law threshold), plaintiff agreed that he would not seek any award above the defendant’s $300,000 liability insurance policy limits.
• Plaintiff is six feet seven inches tall and played basketball throughout high school and college and thereafter. The defense argued that his knee injury could have occurred while he was playing basketball.
• In closing arguments, plaintiff’s counsel requested a total pain and suffering award of $350,000 ($50,000 for the knee injury plus $300,000 for the hand injury). Defendant’s counsel argued that plaintiff was not at all disabled, had no injury to his knee caused by the car accident and his hand injury warranted only a past pain and suffering award of $25,000 (the exact amount awarded by the jury).