On July 27, 2013, Franklin Abreu-DePena, then 39 years old, was driving his taxi in the Bronx when he was involved in a crash with another vehicle.

Mr. Abreu-DePena claimed shoulder, neck and back injuries and in his ensuing lawsuit again the other driver, the jury (a) determined that the other driver was 60% at fault and (b) awarded pain and suffering damages (before apportionment) in the sum of $600,000 ($100,000 past – six years, $500,000 future – 15 years).

Plaintiff claimed that the pain and sufferings award was inadequate; however, the trial judge disagreed and declined to disturb the award. Plaintiff appealed.  In Abreu-DePena v. Weber (1st Dept. 2021), the appellate court ordered an increase in pain and suffering damages to $3,000,000 ($1,000,000 past, $2,000,000 future – 33 years).

Here are the injury details:

  • Shoulder – “around the world” labral tear, Hill-Sachs and socket fractures, requiring arthroscopic surgery on 10/31/13 to repair the tear with six screws
  • Back – herniations at L4-5 requiring decompression laminectomy and fusion surgery on 4/22/14
  • Neck – herniations at C5-6 and C6-7 requiring fusion surgery on 5/26/15

Plaintiff claimed that none of the surgeries were successful in addressing his continuing pain, limited ranges of motion and difficulties standing and walking and that he will require substantial additional medical treatment including surgeries on his shoulder, back and neck. He was awarded $200,000 for future medical expenses (15 years).

The defense argued that the accident was a minor sideswipe that did not cause any significant injuries requiring any of the surgery that plaintiff underwent. Furthermore, their medical experts testified that plaintiff already had a degenerated spine before the accident, sustained no fractures in the crash, did not have a torn labrum and did not need any future medical treatment related to the accident.

Inside Information:

  • Although the trial judge advised the jury that plaintiff’s life expectancy was 33 years, the jurors inexplicably (and without an evidentiary basis) set the future pain and suffering award period at 15 years. The appellate court remedied that error.
  • Plaintiff did not contest the jury’s finding that he was 40% at fault for the accident.
  • There was extensive medical and expert testimony including, for plaintiff, a biomechanical engineer, his treating orthopedic surgeons and pain management physician and an expert anesthesiologist. The defense called an accident reconstructionist, a biomechanical engineer, a radiologist and an orthopedic surgeon.