Back Injuries

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On April 2, 2012, at about 5 p.m., Apolonia Castillo boarded a city bus on 57th Avenue between 97th Place and 98th Street in Queens. After paying her fare, she fell and sustained injuries to her left knee and spine.

Ms. Castillo, then 72 years old, sued the bus company claiming that the driver caused her to fall when he pulled away from the bus stop while she was still standing at the fare box in the front of the bus, not allowing her to safely move to a seat before the accident.

Before trial, defendant moved for summary judgment claiming that (a) plaintiff was already seated when the driver accelerated away from the bus stop and (b) plaintiff’s injuries failed to meet the statutory threshold under Insurance Law Section 5102.  The motion was denied in its entirety.

The Queens County jury agreed that the driver was fully at fault. In the immediately ensuing second phase of the trial, the jury found that plaintiff sustained both a significant limitation of use of a body function or system and a permanent consequential limitation of use of a body organ or member and they awarded plaintiff pain and suffering damages in the sum of $1,500,000 ($500,000 past – three years, $1,000,000 future – 10 years). Both the liability and damages verdicts have been affirmed on appeal in Castillo v. MTA Bus Co. (2d Dept. 2018).

Here are the injury details:

  • Left Knee – torn lateral and medial menisci requiring arthroscopic surgery (menisectomies, chondroplasty of the trochlear groove, lysis of adhesions and synovectomy) with continued difficulty walking (unable to tolerate more than one block due to pain)
  • Cervical Spine – disc bulges at C2-3 through C7-T1 with diminished range of motion
  • Lumbar Spine – disc bulges at L3-4 and L5-S1 with radiculopathy causing weakness and loss of sensation in left leg
  • Post-Concussive Syndrome

Six months before the accident,  plaintiff reported to her primary care physician that she had knee pain and she was referred for an orthopedic evaluation (which did not occur).  There were no further complaints of knee pain in the records of subsequent pre-accident visits to her physician and plaintiff testified that before the accident she had only mild knee discomfort on an infrequent basis. Plaintiff’s orthopedic surgeon opined that (a) her mild symptoms prior to the accident were greatly and severely worsened due to and following the accident and (b) she is at great risk for progressive breakdown of her knee’s remaining articular cartilage and will ultimately require a total knee replacement.

Inside Information:

  • Prior to the accident, plaintiff had intermittent neck pain for many years due to a motor vehicle accident when she was 35 years old.
  • Plaintiff’s pre-trial settlement demand was $750,000; there was no offer.

On May 2, 2006, Walter Garcia was injured while working on a renovation project at the Plaza Hotel in Manhattan. Mr. Garcia, then 46 years old, was removing asbestos caulking from windows when he fell about two feet while attempting to climb over a scaffold on the roof.

Plaza Hotel Under Construction

In his ensuing lawsuit against the owner of the building (and, ultimately, others), Garcia was awarded partial summary judgment on the issue of liability and the case then proceeded to a trial on damages. The Suffolk County jurors awarded plaintiff pain and suffering damages in the sum of $4,200,000 ($1,200,000 past – nine years, $3,000,000 future – 23 years); however, in Garcia v. CPS 1 Realty, LP,  (2d Dept. 2018), the pain and suffering award has been reduced to $2,000,000 ($750,000 past, $1,250,000 future).

Plaintiff’s injuries appeared at first to be limited to to groin pain and leg numbness and he was diagnosed with an inguinal hernia that was surgically repaired eight months later. About 10 days after the accident, he first sought medical attention for complaints of back pain. Fifteen months later, plaintiff underwent an MRI of his lumbar spine and he was diagnosed with herniated discs leading to spinal fusion surgery at L5-S1 four years after the accident.

Unfortunately, the back surgery failed and plaintiff suffered additional injuries including a foot drop, neurogenic bladder with incontinence and mild reflex sympathetic dystrophy (“RSD”), all causing permanent unrelenting and excruciating pain, leaving him unable to walk without the use of two Lofstrand crutches, requiring extensive narcotic pain relief medication and rendering him permanently disabled from gainful employment.

Lofstrand Crutches

The Workers Compensation Board hired an investigator who surveilled plaintiff on 14 occasions from November 2006 through May 2007. The surveillance tapes were admitted in evidence at the damages trial showing plaintiff standing on his toes to change Christmas lights, raking leaves, kneeling down on a bag of leaves to push the air out and transporting a shop vacuum cleaner and pipe. The defendants argued that the tapes showed a person who was not at all disabled and would not need lumbar fusion surgery (which would not occur until March 2010). They contended that sometime after the activity captured on film, and well over a year after the accident, “something [unrelated to his accident] happened to the plaintiff that led him to seek surgery.”

Plaintiff argued that the video footage actually supported his position that all of his injuries are causally connected to the accident noting that there was not a shred of evidence that he engaged in activities inconsistent with a man with herniated discs in his lumbar spine and that his physicians diagnosed him with an unstable spine that continued to get worse and cause more pain and disability over time.

As set forth on the verdict sheet, the jury also awarded economic damages (undisturbed by the courts) for:

  • loss of earnings – $1,276,000   ($556,000 past, $720,000 future – 10 years),
  • loss of annuity – $127,200
  • loss of social security retirement income – $123,000
  • past medical expenses – $34,923 (stipulated)
  • future costs of therapeutic evaluations and care, medical care, medications, aids and homemaker services -$283,150 (23 years)

Inside Information:

  • Plaintiff commenced his lawsuit in Bronx County but the court ordered a change of venue to Suffolk County because plaintiff resided in Suffolk County at all relevant times. On the summons, plaintiff falsely stated he was a Bronx resident; when he testified at a deposition that he’d always been a resident of Brentwood in Suffolk County, a defense motion to change venue was granted.
  • In summations, plaintiff’s counsel asked the jury to award pain and suffering damages in the total sum of $5,000,000. Defendants argued that the only injury for which plaintiff should be compensated was the hernia and that it had resolved. They suggested about $50,000 for pain and suffering.
  • Plaintiff’s orthopedic surgeon testified that the back surgery led to symptoms of RSD but admitted that the RSD had “calmed down” and “was early in the spectrum and had improved.” The defendants’ doctor opined that plaintiff did not have RSD at all.

On December 17, 2011, Ebony Stanford was a rear seat passenger in a taxicab that was involved in a crash with another vehicle in Manhattan on the FDR Drive near the 53rd Street exit.

Ms. Stanford, then a 33 year old security officer at Harlem Hospital residing in the Bronx, sued both drivers seeking an award of pain and suffering damages for injuries to her cervical and lumbar spine.

In 2015, plaintiff’s motion for summary judgment was granted on the issue of serious injury based upon the so-called 90/180 category under Insurance Law Section 5102. Accordingly, at the trial in 2016, the jury was instructed that “the court has already determined that plaintiff sustained a non-permanent medically determined injury that prevented [her] from performing her usual and customary activities for 90 out of the 180 days immediately after the accident.”

The Bronx jury returned a verdict finding the two drivers negligent, apportioning their respective shares of fault and awarding plaintiff $14,400 for her past loss of earnings.

The jury awarded nothing at all for plaintiff’s pain and suffering, a determination that was upheld on appeal in Stanford v. Rideway Corp. (1st Dept. 2018).

As indicated in the appellate court decision, the trial judge found that “plaintiff’s evidence was not compelling” and the jury found that plaintiff did not sustain either (a) a permanent consequential limitation of use of a body organ or member, or (b) a significant limitation of use of a body function or system (two of the serious injury criteria under the statute).

Both plaintiff’s pre-trial motion for summary judgment as to the 90/180 category and the jury’s award of damages for plaintiff’s wage loss were based on plaintiff’s claim that she was entirely unable to work for about four and a half months immediately following the accident.

Here are the injury details:

  • immediate back and neck pain from whiplash
  • ambulance transport to hospital on stretcher with neck brace; treated and released to home after five hours
  • bulging discs at L4-5 and L5-S1
  • three spinal manipulations under anesthesia
  • chiropractic and physical therapy treatment at an outpatient rehabilitation facility for the next four months
  • continuing pain leaving plaintiff unable to lift her six year old daughter, carry heavy groceries or walk fast

The defendants argued that the disc bulges were minimal and degenerative and that there was no evidence of any traumatic injury to the cervical spine. Furthermore, the defendants’ expert orthopedic surgeon (a) diagnosed plaintiff with morbid obesity (she was 5 feet 4 inches tall and weighed 230 pounds at the time) and (b) examined plaintiff and opined that her neck and back were normal and she had no related disabilities.

Plaintiff’s treating orthopedic surgeon opined before trial that she had significant range of motion limitations and permanent lumbar and cervical spine injuries; however, her chiropractor was the only health care provider who testified at trial for her and the jury rejected plaintiff’s position that her injuries met the significant limitation and permanent consequential limitation categories under the statute.

Clearly, this was a case of battling experts and the jurors chose the one they found credible.

 

On February 21, 2011, Juan Quijano was crossing 32nd Street at Sixth Avenue in Manhattan when he was struck and knocked to the ground by a taxi whose driver was making a left turn.

32nd Street at Sixth Avenue

In the ensuing lawsuit, a Kings County jury found the driver fully at fault and the matter then proceeded to a trial on damages. Mr. Quijano, then 31 years old, was awarded $800,000 for his pain and suffering ($300,000 past – three and a half years, $500,000 future – 40 years). In Quijano v. American Transit Insurance Co. (2d Dept. 2017), the appellate court affirmed the judgment, rejecting defendants’ contention that the award was excessive.

As indicated in the court’s decision, plaintiff sustained shoulder, knee and spinal injuries. He was taken from the scene by ambulance to the local hospital  complaining of pain in those areas. Here are the injury details:

  • Shoulder: torn labrum of the rotator cuff with impingement syndrome requiring arthroscopic surgery in 2012 and leaving plaintiff with permanently damaged cartilage, significantly reduced range of motion and muscle power and at high risk for developing traumatic arthritis, adhesive capsulitis and scar tissue
  • Knee: medial meniscal tear and tilting of the patella leaving plaintiff with permanently damaged cartilage and requiting future surgery
  • Back – partial tear/bulge of the L4-5 disc with radiculopathy at the L5 nerve root (confirmed by EMG nerve test) requiring epidural injections and leaving plaintiff in constant pain
  • Neck – C5-C6 radiculopathy affecting biceps

Plaintiff claimed at trial that his pain was so acute that he had been for years and to the present taking 3-4 Vicodin pills per day 3-4 days a week. Furthermore, he alleged he still had difficulties with lifting heavy items, running with his child and playing soccer.

In addition to the award for pain and suffering, the jury also awarded, and the appellate court affirmed,  damages for future medical expenses in the sum of $800,000 (40 years). Plaintiff’s rehabilitation medicine physician testified that required medical expenses over Mr. Quijano’s lifetime will cost about $1,590,000 (at the rate of $39,000 per year ),  including $27,000 per year for epidural injections to both his back and neck, and costs for physicians, physical therapy and diagnostic tests.

Inside Information:

  • Plaintiff’s pre-trial settlement demand was $100,000 – the limit of the applicable liability insurance policy; the offer was $40,000. The amount of the judgment in excess of the coverage might be recovered in a bad faith refusal to settle claim.
  • Plaintiff resumed work (sales and house paining) a few months after the accident and there was no earnings loss claim presented to the jury.
  • The driver stated to a police officer at the scene that plaintiff ran into the side of his taxi but the driver was precluded from testifying at trial after he failed to appear several times for his pre-trial deposition.

 

 

On November 9, 2011, Stenneth Knight, then 43 years old, was driving to work when he was stopped at a red light and his car was rear-ended on Rockaway Parkway in Brooklyn. After a trial on liability, Mr. Knight was granted a directed verdict finding the other driver fully at fault and the case proceeded to a trial on damages only.

The Kings County jury determined that plaintiff sustained both a significant limitation of use of a body function or system and a  permanent consequential limitation of of use of a body organ or member (two of the threshold categories under Insurance Law Section 5102, any one of which is required in order to recover pain and suffering damages in New York car accident cases). Plaintiff was then awarded pain and suffering damages in the sum of $80,000 (past only – three and a half years).

The jury was not permitted to award any future damages because the trial judge precluded plaintiff’s expert orthopedic surgeon from testifying as to his opinion regarding prognosis and future medical treatment.

On appeal in Knight v. Barsch (2d Dept. 2017), the trial judge’s preclusion order was ruled erroneous and it was held that the jury should have been permitted to hear plaintiff’s expert’s opinions and award damages for future pain and suffering. Accordingly, the appellate court ordered a new trial on the issue of damages for future pain and suffering.

As indicated in the decision, plaintiff sustained several bulging discs and a a meniscal tear in his right knee. Here are the injury details:

  • Right Knee – complete tear of medial meniscus
  • Cervical Spine – bulging discs at C4-5, C5-6 and C6-7
  • Lumbar Spine – large disc protrusion at L4-5 and two smaller ones at L2-3 and L5-S1

 

Plaintiff drove his car from the scene to work (he was a chef) and first received medical treatment at an emergency room two days later complaining of knee, neck, back and shoulder pain. The next day, he began a two year course of three times a week treatment with a chiropractor. He also treated with an orthopedic surgeon (for eight months),  a pain management physician (who, over the course of a year, administered a series of facet nerve block injections in plaintiff’s neck and back) and a physical therapist.

Plaintiff’s only medical witness was his expert orthopedic surgeon, Jerry Lubliner, M.D., who examined plaintiff one time, in 2014.  Plaintiff testified that he still had pain and limitations in his neck and back a few days a week but that his knee pain was even more often, was the worst and required him to use a cane several days a week. As a result, he claimed, he could no longer enjoy playing cricket,  jogging or dancing in church and he could no longer help his wife with the laundry and other activities, nor could he cook any longer without using a high chair to sit.

None of plaintiff’s injuries required surgery as of the trial date although Dr. Lubliner testified that plaintiff has significant range of motion limitations that will be a problem for the rest of his life and he would have testified that Mr. Knight has permanent pain in his knee and spine and that he  “needs operative arthroscopy of the right knee and possible meniscal repair/menisectomy.”

The defense contended that plaintiff had pre-existing degeneration in his spine and knee, his injuries did not meet the serious injury threshold and there should be no award of any damages at all.

Inside Information:

  • In her closing argument, plaintiff’s attorney asked the jury to award $150,000 for her client’s past pain and suffering.
  • Plaintiff left his job as a chef because he had to stand all of the time and it was too painful. As of trial, he was working as an aide at a skilled nursing facility (where he claimed he was allowed to sit down for half of his shift). Plaintiff missed only one or two days from work and made no claim for loss of earnings.
  • Plaintiff’s treating orthopedic surgeon, Eric Senat, M.D.,  was not called to testify. The defense claimed that in 2014 Dr. Senat was found guilty of health care fraud and that the jury should be able to see a document from a workers compensation board to that effect because before testifying Dr. Lubliner reviewed Dr. Senat’s treatment records and Dr. Senat’s credibility (and the reliability of his records) should be considered by the jury. The trial judge would not allow the document in and the appellate court, in finding the parties’ “remaining contentions” to be without merit, agreed.

On May 21, 2010, Elizabeth Eastman, a home health aide for Access Nursing Services, was a rear seat passenger in an ambulette that was transporting her client from a nursing home in Manhattan to her client’s residence in Harlem. The ambulette collided with another vehicle on the FDR Drive in Manhattan.

As a result of the accident, Ms. Eastman, then 40 years old, struck the back of the driver’s seat before landing on the floor of her vehicle. She claimed that she felt immediate pain in her lower back but her driver did not wait for the police to arrive at the scene and he drove the client home. Ms. Eastman, a Brooklyn resident, then went to a hospital there complaining of back pain. She was treated and released with a prescription for Motrin.

In the ensuing lawsuit, a Kings County jury found both drivers liable for the crash – the ambulette driver 60%  and the other driver (who had been attempting to overtake the ambulette) 40%. In the damages phase of the trial, the jury returned a verdict awarding plaintiff pain and suffering damages in the sum of $200,000 ($150,000 past – four and a half years, $50,000 future – one year).

In Eastman v. Nash (2d Dept. 2017), the judgment has been affirmed.

As set forth in the court’s decision, plaintiff sustained a herniated disc at L4-5. Here are the additional injury details:

  • L4-5 herniation with indentation on the thecal sac; bulging disc at L5-S1
  • lumbar spine radiculopathy
  • lumbar spine range of motion deficits up to 50%
  • 10 months of physical therapy
  • 10 months unable to return to work
  • unable to do any heavy lifting or sit still in a chair without pain
  • unable to resume jogging (can only walk short distances without pain)

A neurologist testified on plaintiff’s behalf and opined that her injuries are permanent and she will need future medications, physical therapy, chiropractic treatment and acupuncture.

The defense medical experts included a diagnostic radiologist, a neurologist and an orthopedic surgeon. They conceded that plaintiff’s MRI exam eight weeks after her accident showed a herniation but contended it was degenerative and preceded the crash and that plaintiff sustained only insignificant and non-permanent soft tissue injuries and no surgery has been recommended.

Inside Information:

  • Plaintiff had been laid off from similar employment earlier in 2010 and at the time of the accident had applied for unemployment benefits because there was no work for her (this was the first day of her employment for the client).  Ten months after the accident, plaintiff returned to work with another agency (on a light duty basis). There was no wage loss claim in the lawsuit.
  • Plaintiff’s treating orthopedist for the first six months after the accident, David Lee Hsu, M.D., was indicted in 2011 in connection with health care billing scams and pled guilty to conspiracy to commit health care fraud. He surrendered his medical license in 2013. He was not called to testify at trial. Defendants sought to introduce evidence of his conviction but the trial judge sustained plaintiff’s objection and did not allow evidence of either the conviction or the fact that the doctor’s clinic where plaintiff treated with him closed as a result.
  • There was little or no visible damage to either vehicle and in her report of the accident shortly thereafter, plaintiff described it as a “fender bender.”

 

 

On June 3, 2005 Carlos Cano fell to the ground from the fourth rung of an unsecured ladder he was using to caulk the exterior walls of a gas station construction site in Cortlandt Manor.

The accident site

Mr. Cano, then 33 years old, had been employed by the project’s general contractor which specialized in the construction of gas stations and provided the ladder. He sued the owner of the site under the provisions of Labor Law Sections 240(1) and 241(6). The Suffolk County jurors returned a verdict finding that the owner was at fault for violating Section 241(6) and they awarded plaintiff pain and suffering damages in the sum of $475,000 ($100,000 past – nine years, $375,000 future – 31 years).

In Cano v. Mid-Valley Oil Co., Inc. (2d Dept. 2017), the pain and suffering damages award was increased to $3,500,000 ($1,000,000 past, $2,500,000 future).

As indicated in the court’s decision, plaintiff sustained significant wrist and back injuries requiring several surgeries. Here are the injury details:

Wrist:

  • severe, comminuted intra-articular fracture with external fixation surgery
  • implantation of pins, screws and K-wire to stabilize the fracture; surgery to remove the hardware
  • permanent loss of range of motion, post-traumatic arthritis
  • future need for either wrist replacement or fusion surgery

Back:

  • compression fracture of thoracic spine at T10-11 resulting in arthritis
  • disc herniation requiring fusion and decompression surgery at L5-S1 with insertion of pedicle screws and  side bone grafting
  • non-union and failed back syndrome requiring fusion surgery at L4-S1
  • permanent loss of range of motion and progressively worsening pain
  • future need for L3-4 revision surgery

Plaintiff claimed he was permanently unable to return to work. He had been earning $600 per week (cash off-the-books) and his attorney asked the jury to award past and future lost earnings in the sum of $1,720,000; the jurors, however, awarded only $310,000.

Plaintiff also claimed entitlement to awards for past and future medical expenses; the jurors awarded $850,000 but the appellate court ordered a reduction to $500,000.

One of the main issues throughout the litigation was plaintiff’s status as a so-called undocumented immigrant or illegal alien. He’d come to the United States from Colombia in 2001 and overstayed his visa while working to send money back to his wife and five children back home. The trial judge allowed defendants to present evidence as to plaintiff’s immigration status; the appellate court, though, held that summary judgment as to liability should have been granted before trial in plaintiff’s favor despite the immigration issues (and the fact that plaintiff failed to pay income taxes).

Inside Information:

  • Defendants did not present any evidence at trial. Plaintiff offered the testimony of a specialist in hand surgery (who also had experience in back surgery) and a vocational rehabilitation expert.
  • Plaintiff admitted that he lied about his identity at the hospital in order to obtain health insurance coverage.
  • In closing arguments, plaintiff’s attorney requested a pain and suffering award of $16,500,000. Defense counsel argued that plaintiff’s back pain and disabilities were related to a congenital deformity, suggested he was operated on for purposes of litigation and stated plaintiff should be awarded only what is “fair and reasonable.”

 

On August 16, 2006 Arnulfo Ahumada was working as a parking attendant in a parking garage at NYU Langone Medical Center at 530 First Avenue in Manhattan when he was struck by a rolling car whose driver had mistakenly left it on the ramp with its gear in neutral instead of park.

Mr. Ahumada, then a 51 year old Bronx resident, claimed significant knee and low back injuries and sued the driver of the car. At trial in August 2015, the judge rendered a directed verdict on liability against the driver and the matter then proceeded to an assessment of damages. The Bronx County jury awarded plaintiff pain and suffering damages in the sum of $750,000 ($500,000 past – nine years, $250,000 future – 10 years). The trial judge agreed with the defense that the awards were excessive and he ordered that the verdict be set aside and a new trial be held on damages. Plaintiff’s appeal followed.

In Ahumada v. Drogan (1st Dept. 2017), the appellate court agreed with the trial judge that the verdict was excessive but found that the judge should have allowed pain and suffering damages in the sum of $450,000 ($300,000 past, $150,000 future).

The decision mentions only that plaintiff’s injuries included a fractured fibula. Here are the injury details:

  • ambulance transport to hospital with complaints of bilateral knee pain and low back pain; treated and released to home with crutches and pain medication
  • admitted to hospital in the ensuing week for two days for possible blood clots in left leg
  • non-displaced left proximal fibular fracture
  • left knee torn meniscus requiring arthroscopic surgery  on 10/26/06

  • on crutches eight months, cane one month
  • out of work seven months
  • extensive physical therapy regimens both before and after surgery
  • herniated disc at L4-5
  • continuing knee and back pain
  • unable to resume bicycle riding, playing soccer, running or prolonged walking or standing

The jury heard extensive medical testimony on behalf of each side including expert orthopedic surgeons Leonard Harrison, M.D. for plaintiff and Mark I. Pitman, M.D. for defendant.

The defense  argued that the fibula fracture was insignificant (especially because it had not been diagnosed until several days later when plaintiff was examined for possible blood clots in his leg), the herniated disc was also insignificant (because there was no impingement on any nerve root) and the meniscus was merely shaved down and not repaired. Furthermore, the defense argued that plaintiff returned to work without restrictions seven months after this accident, hadn’t had any medical treatment for his knee injury for almost eight years and that a subsequent car accident (on 10/5/10) was the cause of any knee or back pain or disability that still existed as of trial and he had a pending lawsuit for that accident in which he’d be compensated for all of his injuries.

Plaintiff countered that the 2010 accident had nothing to do with his left knee or back (the injuries in the subsequent accident were to plaintiff’s neck and shoulder) and that his leg and back injuries are permanent, painful and disabling with the possibility of needing a total knee replacement some time in the future.

Inside Information:

  • The trial judge gave instructions to the jury (the jury charge) that included the issue of the subsequent accident.
  • In his summation, defense counsel suggested that the jury award damages only for past pain and suffering; plaintiff’s counsel asked for $3,000,000 equally split between past and future.
  • The defense hired an investigator who took surveillance film of plaintiff on 15 occasions and claimed that it showed plaintiff working without pain or restrictions. Plaintiff’s counsel contended the film  showed Mr. Ahumada struggling to walk, doing so slowly and with all his weight on his uninjured right leg.

 

On November 23, 2011 Melissa Shillingford was stopped for a red light on Beach Avenue at the Cross Bronx Expressway intersection.  As the light turned green, her 1997 Honda Accord vehicle was struck in the rear by a city bus.

1997 Honda Accord
A 1997 Honda Accord

Ms. Shillingford, then a 23 year old college student, claimed she sustained significant back injuries and sued the transit authority and its driver who defended claiming that plaintiff failed to move forward when the light turned green and also that wet leaves on the pavement created a slippery condition. On January 25, 2013 the defenses were rejected and a judge granted plaintiff’s motion for summary judgment and directed a trial to be held on the issue of damages only.

Two years later, the damages trial was held and on April 21, 2015 the Bronx jury awarded pain and suffering damages in the sum of $1,600,000 ($100,000 past – three years, $1,500,000 – 54 years) plus medical expenses in the sum of $830,000 ($30,000 past, $800,000 future – 54 years). The trial judge denied defendants’ motion to set aside the verdict rejecting the contention that the award of damages is excessive.

Defendants appealed, again arguing that the damages award is excessive and also arguing that the trial judge erred in precluding both testimony of their biomechanical expert and photographs of the vehicles after the accident. In Shillingford v. New York City Transit Authority (1st Dept. 2017), the appellate court agreed with the defendants as to the evidence issues, reversed the judgment entered after trial and remanded the case for a new trial on damages.

The appellate court did not address the issue of damages. Here are the injury details:

  • herniated disc at L4-5 requiring eight months of conservative treatment including physical therapy (about 45 office visits) and three epidural steroid injections
  • surgery on 3/24/13: laminectomy and partial discectomy (removal of the lamina and part of the facet joint to get to and remove the herniation at L4-5)
  • residual continuing pain and restricted range of motion with likelihood of two spinal fusion surgeries in the future

laminectomy-surgery1

The defense argued that the impact was minor, there was no herniation at L4-5 (just a bulge), plaintiff missed only one month from school (she was still a student at the time of trial), she already had a degenerative spine before the accident and her range of motion was normal after the surgery.

At the new trial, defendant’s biomechanical expert will be permitted to testify and offer his opinion on the maximum force that may have been applied to plaintiff and the likelihood of resulting injury. In his pre-trial report, the expert concluded that “the subject incident provided no mechanism for causing” plaintiff’s disc herniation.

Inside Information:

  • The defendants offered to settle for $1,200,000 before the verdict but plaintiff’s settlement demand at the time was $2,000,000.
  • There was no claim for lost earnings.
  • The jury deliberated for almost three days and reviewed all of the more than 20 exhibits that were in evidence.

 

On July 1, 2013, the car Theresa Lamphron-Read was driving on Chili Avenue in Rochester was struck head on by a car whose driver had lost control and crossed into her lane.

police reportIn Ms. Lamphron-Read’s ensuing lawsuit against the other driver and owner, summary judgment was granted and the case proceeded to a trial on damages.

On November 9, 2015, a Monroe County jury awarded plaintiff pain and suffering damages in the sum of $25,000 (all past – 2 1/2 years). Plaintiff’s post-trial motion arguing that the damages award was inadequate was granted and the trial judge ordered an increase to $130,000 ($65,000 past, $65,000 future).

In Lamphron-Read v. Montgomery (4th Dept. 2017), the $130,000 award has been affirmed.

As set forth in the appellate court decision, plaintiff sustained seven non-displaced vertebral fractures – the transverse processes from T5-T9, L-1 and the endplate of a facet at C-4. She was hospitalized for a week but never underwent any surgery nor is any expected.

Plaintiff was required to wear a TLSO (thoracic-lumbar-sacral orthosis) brace for three months.

TLSO back brace

While it was undisputed that as a result of the crash the then 65 year old plaintiff had permanent paraspinal muscular injuries with chronic activity-related back pain for which there was no available remedy, her fractures healed well and her last medical treatment was one year before the trial.

Plaintiff, retired from her employment in daycare and companion care for seniors, testified that sitting and walking aggravate her back pain, she has difficulty falling asleep and she experiences pain with significant physical activities. Her expert orthopedic surgeon opined that plaintiff would always suffer from “activity related pain,” a term he said accurately described plaintiff’s condition as opposed to chronic, unrelenting pain.

thoracic-vertebrae-superior-articular-proceess-transverse-costal-facet

In arguing for a return to the jury’s $25,000 award, defendants noted that plaintiff was able to mow her lawn, walk her dog and do grocery shopping and that the only activities she could not perform are painting and climbing a ladder. They argued that plaintiff made a very good recovery and, at most, would have minor intermittent mid-back pain depending upon her activity level.

Inside Information:

  • In summation, plaintiff’s counsel asked the jury to award $40,000-$80,000 for past pain and suffering damages plus $100,000-$200,000 for future pain and suffering. In her post-trial motion seeking additur, plaintiff sought $50,000 for past pain and suffering and $100,000 for the future.
  • Defendants presented no witnesses at the damages trial and their failure to call their orthopedic surgeon who examined plaintiff resulted in a missing witness charge. They claimed that their doctor’s testimony would have been duplicative since his findings were virtually identical to the findings of plaintiff’s doctor.
  • Plaintiff’s medical expert testified in the absence of her treating doctor because he had moved to Texas and was unavailable.