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.

On August 4, 2007 Herminio Pizarro and his girlfriend Olga Garcia were attending a block party on Brook Avenue and 138th Street in the Bronx.

Flyer_Page_001.jpgAt about 7 p.m., Mr. Pizarro interceded when he saw a New York City Police Department (“NYPD”) officer questioning a 14 year old girl. An altercation ensued between Pizarro and the police officer in and following which Pizarro and Garcia were injured. Pizarro was arrested and charged with assault.

The charges were dropped by the district attorney and the criminal case dismissed on January 10, 2008. Pizarro then sued the NYPD and the officer for false arrest, malicious prosecution and excessive force. Garcia joined in the suit claiming her own pain and suffering damages.

Pizarro, a 57 year old unemployed former state corrections officer, Vietnam War veteran and long-time member of the National Guard, claimed that he was merely pleading with the officer to refrain from striking the girl when the officer threw him against a wall, tossed him onto the ground and punched him several times as he was being arrested. Pizarro claimed he was handcuffed and beaten further both in the police car on the way to the police station and in the bathroom at the police station  by six unidentified officers. Garcia’s injuries occurred when she tried to intercede on her boyfriend’s  part and was restrained by two officers while a third sat on her.

A Bronx County jury ruled in favor of plaintiffs on all of their claims and awarded damages as follows:

  1. to Mr. Pizarro for pain and suffering in the sum of $2,000,000 (all past – seven years) plus punitive damages in the sum of $1,000,000 and
  2. to Ms. Garcia for pain and suffering in the sum of $250,000 (all past – seven years) plus punitive damages in the sum of $250,000.

Here are the injury details as to Mr. Pizarro:

  • ER treatment on date of incident presenting with road rash to his head and face, a dislodged tooth and complaining of pain in his neck, mouth and head; he received sutures in his tongue
  • surgery on 2/1/08 – partial corpectomy and discectomy at C5-6, anterior fusion with allograft bone and metal plate
  • surgery on 5/13/09 – removal of old hardware, C4-5 discectomy
  • continuing and constant neck pain, unable to resume competitive or any weightlifting, unable to ride a bicycle; permanent lisp

Here are the injury details as to Ms. Garcia, then 50 years old:

  • ER treatment three days later complaining of low back pain
  • surgery 3/2/09 – L2-3 disc replacement
  • surgery 6/9/09 – decompression of C3-4 disc and removal of hardware
  • continuing pain in neck and back, unable to return to dance hobby, unable to walk long distances without cramps
  • Note: Before this incident, Ms. Garcia had  extensive disc disease requiring three surgeries (two in 2004 and one in December 2005) – lumbar screw fixation, cervical surgery for spinal cord compression and spondylosis and revision of prior instrumentation and removal of lumbar screws. She was disabled and treating continuously with doctors up to the date of this incident. The judge charged the jury as to exacerbation and susceptibility.

Defendants’ medical expert, Sheeraz Qureshi, M.D., testified that both plaintiffs suffered from degenerative/arthritic spinal conditions before this incident and that the incident did not cause the need for any of the surgeries after the incident. To the contrary, plaintiffs’ medical expert, Gabriel Dassa, D.O.., testified that the incident caused the need for all of the surgeries after the incident.

The defendants challenged all of the awards in a post-trial motion and the plaintiffs at the same time cross-moved for a new trial on damages claiming that the jury’s failure to award anything at all for their future pain and suffering was inconsistent and against the weight of the evidence. The trial judge issued a decision denying both motions in their entirety.

Defendants appealed, again challenging all of the awards to both plaintiffs, arguing that there was no basis for any of them. Plaintiffs opposed the appeal but did not cross-appeal as to future pain and suffering damages apparently because the defendants did not challenge the amounts awarded for past pain and suffering damages.

In Pizarro v. City of New York (1st Dept. 2017), the punitive damages awards have been vacated in their entirety because there was insufficient evidence that the named defendant police officer was involved in the assault on Ms. Garcia or that he (a) accompanied Mr. Pizarro to the police station or (b) was involved in the assaults on Mr. Pizarro later in the precinct’s bathroom.

Inside Information:

  • There were indications in his medical records that Mr. Pizarro was intoxicated at the scene; however, defendants were precluded from introducing those records because the trial judge determined they were not germane to his medical treatment.
  • In addition to Ms. Garcia’s two 2009 surgeries, she also underwent back surgeries in 2010 and 2011; however, she was precluded from introducing evidence of the latter two surgeries because they were not included in her supplemental bill of particulars.
  • Plaintiff Pizzarro was precluded from introducing any evidence that he will need future surgery because it had not been included in his bills of particular.
  • In plaintiffs’ closing argument, their attorney asked the jury to award (a) $7,000,000 for Mr. Pizarro’s pain and suffering plus $1,000,000 for punitive damages and (b) $3,000,000 for Ms. Garcia’s pain and suffering plus $1,000,000 for punitive damages.
  • In defendants’ closing argument, their attorney urged the jury to award nothing at all because there had been no false arrest , malicious prosecution or excessive force and “all the plaintiffs have been doing is exaggerating and lying because they saw an opportunity to get a payday from the City of New York and they acted upon it.”

On March 22, 2007, Andrew Flores was boarding a subway train at 149th Street in the Bronx when he tripped and fell over a broken portion of a wooden board used to cover the edge of the platform. His right foot became ensnared and stuck in a defect in the board causing his left leg to become caught in the gap between the train and the platform.

149

In the ensuing lawsuit against the transit authority, the Bronx County jurors determined that the defendant was negligent and issued a verdict specifically finding that the wooden board was unsafe and that the defendant should have but failed to correct it. The jurors awarded pain and suffering damages in the sum of $641,000 ($266,000 past – seven years, $375,000 future – 15 years) as well as future medical expenses in the sum of $535,000 (15 years).

In Flores v. New York City Transit Authority (1st Dept. 2017), both the liability and pain and suffering awards were affirmed; however, there is no mention in the court’s decision as to the nature of plaintiff’s injuries.

Here are the injury details:

Left Knee –

  •  torn meniscus and large femoral condyle defect with loose cartilage
  • arthroscopy on 5/15/07 with chondroplasty medial femoral condyle, synovectomy and partial meniscectomy
  • Orthovisc injections
  • continuing painful ambulation and quadriceps atrophy requiring brace or cane and narcotic pain medications

meniscus_repair--04

Back –

  • severe back pain, spasms, decreased range of motion and chronic intractable lumbar radiculopathy
  • epidural steroid injections and narcotic pain medications

epidural1

The award of $535,000 for plaintiff’s anticipated future medical expenses (15 years) was based upon testimony from plaintiff’s pain management physician and orthopedic surgeon that his injuries are permanent and he will require another arthroscopic surgery (cost about $50,000), may require total knee replacement surgery (cost about $100,000) and will require pain management treatment, epidural steroid and Orthovisc injections, medications and other medical care into the future. The trial  judge ordered a reduction of the future medical expense award to $315,250 based upon the testimony regarding what treatment will be needed and the cost estimates. Plaintiff then agreed to the reduction.

Inside Information:

  • There was no mention of back pain in the ER records on the day of the accident and no treatment records for back pain were adduced at trial except for those of plaintiff’s pain management physician with whom he treated for the first time (but continuously thereafter for both his back and his knee) three years after the accident (although he treated with a chiropractor in the interim). In summation, defense counsel stated: “Mr. Flores lost his job and in 2010 this becomes a debilitating back injury and debilitating knee injury that he seeks massive compensation for.”
  • Mr. Flores, then 46 years old, had been employed at the time of the accident helping the homeless as a housing specialist/case manager at the Harlem YMCA; he was unable to return to work for six months. Thereafter he was unemployed (but plaintiff did not claim loss of earnings damages at trial).
  • In 1987, Mr. Flores was incarcerated for five years following felony convictions involving drug use and robberies, facts that were brought out at trial by his attorney and then elaborated upon by defense counsel in cross-examination.

On October 11, 2008 Gilbert Hernandez was working at a construction site in the Bronx inspecting a gas line being installed in a six-foot deep trench. As he was  climbing out, Mr. Hernandez fell down into the trench landing on his back.

Trench

In his ensuing lawsuit against Danella Construction of New York, Inc. –  the pipe installation subcontractor –  the jury determined that the defendant was liable under Labor Law Section 240 because it failed to provide the proper equipment (i.e., a ladder) so that plaintiff, then 44 years old, could have safely exited the elevation-related hazard.

Hernandez was awarded substantial damages from the Bronx jury on June 2, 2014 but the amount was slashed in a post-trial decision on September 22, 2015 and in Hernandez v. Consolidated Edison Co. of N.Y., Inc. (1st Dept. 2016) the trial judge’s reductions have been affirmed.

The appellate court decision, though, provides no information at all as to the plaintiff’s injuries and fails to disclose any of the the amounts awarded by the jury, reduced by the trial judge and affirmed by the appellate court.

Here are the injury details:

  • herniated discs at L3-4, L4-5 and L5-S1
  • three epidural and facet block injections, extensive physical therapy
  • laminectomy and fusion at L4-5 and L5-S1 with bone graft, six screws, plate and two rods requiring one week hospitalization

lumbar fusion3

  • failed back surgery syndrome and chronic pain requiring three spine stimulator implant surgeries

spinal cord implant surgery

  • left ankle sprain and wound with infection requiring one week hospitalization for antibiotic therapy; chronic pain and limited range of motion
  • unable to return to construction work, take long walks or ride a bicycle

The jury awarded plaintiff pain and suffering damages in the sum of $2,500,000 ($300,000 past – 5 1/2 years, $2,200,000 future – 31 years); however, the trial judge reduced the jury’s pain and suffering award to $1,400,000 ($200,000 past, $1,200,000 future) and that’s the amount affirmed by the appellate court.

Inside Information:

  • Based largely upon a life care plan prepared by one of plaintiff’s experts that delineated likely future medical needs and costs (such as about $1,500,000 for additional spinal cord stimulation procedures and replacements), the jury also awarded past medical expenses in the sum of $300,000 and future medical expenses in the sum of $2,700,000. The trial judge found (and the appellate court agreed) that most of the future medical expenses award was speculative and it was reduced to $491,431.
  • Plaintiff’s pre-trial settlement demand was $750,000 against an offer of $50,000.
  • Plaintiff was helped out of the trench, in pain, but declined medical attention at the scene, returned to work two days later and worked for another six days before he first sought any medical treatment related to his injuries. Thereafter, he never returned to work.
  • Consolidated Edison Company was the first named defendant in the lawsuit caption but the claims against it were dismissed during trial and the case was continued and tried against only Danella Construction.

 

On April 30, 2010 Patricia Telesco was driving her 2003 Hummer motor vehicle on Route 55 in Lagrangeville when she was struck head on in her lane by a 1998 Oldsmobile driven across the double yellow line by Kyle Blackman on his way to classes at Arlington High School. Ms. Telesco was taken from the scene by ambulance to the local hospital complaining of back and leg pain.

Route 55 in Lagrangeville
Route 55 in Lagrangeville

Ms. Telesco, then 41 years old, sued Mr. Blackman (and his father, as his vehicle’s owner) and in October 2013 a Dutchess County jury determined that the defendant driver was fully liable for the accident.

A different jury then heard testimony in a damages only trial and on December 13, 2013 plaintiff was awarded pain and suffering damages in the sum of $60,000 (all past – three years, eight months).

Plaintiff appealed claiming that the damages award was inadequate. In Telesco v. Blackman (2d Dept. 2016), the appellate court declined to disturb the amount of damages and affirmed the jury’s award.

As set forth in the court’s decision, Ms. Telesco sustained a thoracic disc herniation for which she underwent surgery. Here are the injury details:

  • disc herniation at T12-L1 with associated annular tear and indentation of the spinal cord
  • surgery on 9/23/10 to remove disc material and stabilize the joint – a T12-L1 laminectomy and microdiscectomy with interbody fusion with pedicle screws and two rods
  • three day hospital admission for the surgery with emergency re-admission shortly thereafter for four more days due to pain
  • confined to home for four months after second hospitalization
  • two scars at surgical site
  • unable for one year to resume customary homemaking activities or drive a car
  • continuing inability to resume kayaking, snowmobiling or ride a horse

spine modelT12 fusion

The issue on appeal related to New York’s CPLR 5102 (d) – the so called serious injury threshold statute.

The jurors were presented with verdict sheet questions requiring them to state whether plaintiff’s injuries met either the statutory significant limitation of use of a body function or system category or the 90/180-day category (a non-permanent injury that prevents one from performing substantially all of the material acts that constitute one’s usual and customary daily activities for not less than 90 days in the 180 days immediately following the accident). The jurors ruled that plaintiff had not sustained a significant limitation of use but had met the 90/180-day standard.

Plaintiff’s normal pre-accident routine involved activities related to the 16 acre family farm she maintained with her husband. Each day, she’d pick up food from a nearby store to feed the farm animals (calves, sheep and chickens), she did secretarial work for her husband, cared for her son and did housework such as vacuuming and washing clothes. The defense argued that within one year, plaintiff resumed all of these activities, she sought no medical care for this matter for more than two years before trial and her only physical complaints as of trial were that on cold and rainy days she has “a little sharpness” in her back and has to be careful walking on uneven ground.

Neurosurgeons for both parties testified by way of videotape.

  • Plaintiff’s surgeon testified that within four months of the accident, plaintiff did not have any documented significant limitations and within a year her radiating pain had resolved and her prognosis was excellent. He made no mention of any objective findings as to limitations or restrictions and even stated that the fusion he performed “may or may not be” a significant limitation of that portion of the spine.
  • The defense expert opined that Ms. Telesco had “no significant limitation” as a result of her surgery: “having a total of 17 levels between the thoracic spine and lumbar spine, fusing one should not result in any significant loss of range of motion in general ….”

Inside Information:

  • The defendant claimed that a yellow jacket bee had entered his car 10 seconds before the crash and that he’d tried to swat it away when he lost control of his vehicle. Plaintiff’s motion for summary judgment as to liability was denied in 2012 when the trial judge found that it was for a jury to determine whether the distraction of the bee provides a non-negligent explanation for the accident.
  • Plaintiff’s husband asserted a loss of services claim but was awarded nothing.

On June 12, 2009, 32 year old Jason Kowalsky was a field technician for Verizon standing at the back of his parked van when he was hit by a pick-up truck owned by the County of Suffolk.

Verizin van

In his ensuing lawsuit, Kowalsky’s motion for summary judgment as to liability was granted and in August 2014 the case proceeded to a damages only trial.

Plaintiff was awarded pain and suffering damages in the sum of $1,050,000 ( $200,000 past – five years, $850,000 future -41 years). The trial judge ordered a reduction of the future damages award to $200,000. On appeal, in Kowalsky v. County of Suffolk (2d Dept. 2016), the entire pain and suffering award has been reinstated.

As set forth in the court’s decisions, plaintiff sustained a back injury that required surgery. Here are the injury details.

  • emergency transport to local hospital with severe overall body pain and knee placed in immobilizer; discharged to home by ambulance but returned to the hospital same day and two days later complaining of leg pain
  • right knee arthroscopic meniscal repair surgery on 12/2/09; partially torn anterior cruciate ligament and chondromalacia observed
  • knee brace for one month, crutches for three months
  • low back pain radiating to lower extremities due to annular tear at L4-5 requiring physical, injection and medication therapies and on 6/3/12 lumbar laminectomy surgery and a spinal fusion at L4-5 with screws, rod and a bone graft
  • at the time of trial, plaintiff had limited range of motion in his spine, chronic pain syndrome, was unable to lift or bend and the side effects of extensive continuing opioid pain medications (he was taking Oxycodone, Methadone, Flexeril, Ibuprofen and Ambien) left him sluggish, groggy, cognitively impaired, with extremely limited daily activities and unable to return to any work at all
  • all injuries were deemed permanent and plaintiff’s prognosis was poor for control of his chronic pain

annular tears 2

The jury also awarded economic damages in the sum of $4,038,000 ($2,625,000 for lost earnings and $1,413,000 for lost benefits). The trial judge ordered substantial reductions of all future economic (and future pain and suffering) losses but the appellate court reinstated them all. The jury award for past lost wages was at the rate of $75,000 per year which was about what plaintiff had earned in a recent year; future lost earnings (over a 24 year period) were based upon increases plaintiff claimed he would have enjoyed over the years. The defendants’ main argument as to the lost earnings awards was that plaintiff could perform some form of sedentary work, according to their experts. As the court noted, though, the jury was free to adopt the opinions of plaintiff’s expert physicians who opined that he could not return to any form of work, sedentary or otherwise (mainly due to the debilitating effects of continuing narcotic pain medications).

Inside Information:

  • Defendants raised on appeal an allegation that a year before trial plaintiff pled guilty to felonious grand theft and that any claims of accident related inability to work are extremely suspect. Plaintiff argued that this claim was not raised at trial and should therefore not be considered by the appellate court. It was not mentioned in the decisions.

On February 19, 2009, Ruben Corena drove his truck to the Sunoco gas station at 880 Garrison Avenue in the Bronx. While walking back to his truck after paying for his fuel, Mr. Corena fell and sustained injuries due to cracked pavement and oil on the ground.

Sunoco 990 Garrison Ave. Bronx
The Site of Mr. Corena’s Fall

On January 8, 2013, in the ensuing lawsuit against the property owner and lessor, the jury returned a verdict finding that the premises was unsafe and defendants were fully at fault for the accident and plaintiff’s injuries. The same jurors then awarded plaintiff pain and suffering damages in the sum of $450,000 ($250,000 past – four years, $200,000 future – 20 years).

In Corena v. BBZZ Equities, Inc., (2d Dept. 2016), both the liability and damages verdicts have been affirmed.

As to injuries, the appellate court decision mentions only that plaintiff fell to the ground, his leg became swollen and he had a protruding bone. Here are the injury details:

  • Left Leg: spiral fracture of the distal tibia and comminuted fracture of the fibula
  • Surgery #1 on 2/20/09:  external fixation to try to bring the bone together to heal, requiring a seven day hospital admission
  • Surgery #2 in April 2009: removal of external fixator due to an infection where a metal screw had been inserted into the ankle
  • Surgery #3 on 1/25/10: open reduction internal fixation (“ORIF”) with bone graft from hip, metal plate and eight screws implanted to repair the tibia where the fracture had been infected and was not healed, requiring a five day hospital admission
  • Torn meniscus left knee requiring surgery # 4 on 7/22/10 to arthroscopically repair (healed as of trial)
  • Back – herniated disc at L4-5 (surgery has been recommended)

tib fib fx types

Mr. Corena testified that he remained in near constant ankle and back pain with leg cramps and shooting pain in his back that left him with a loss of mobility and balance requiring a cane to walk and that he is unable to take long walks, play soccer or basketball, lift or carry his grandchildren, sit for long periods or go out dancing with his wife.

Plaintiff’s expert orthopedic surgeon opined that his ankle and back injuries and pain are permanent, he has ended up with one leg slightly shorter than the other (requiring a lift in his shoe), his prognosis is “guarded to poor” and manual work is out of the question while sedentary work wold be “hard because he can’t sit.” Defendant’s expert orthopedic surgeon testified that plaintiff’s back injury was not related to the accident (and that in any event he will not need back surgery) and that while plaintiff’s tibia injury is permanent, he does not require a cane and can perform sedentary work.

Mr. Corena, 51 years old at the time of trial, had been a truck driver for the two years before his accident. He never returned to work and the jury awarded him past loss of earnings damages in the sum of $150,000. He made no claim for future loss of earnings. Defendants argued that the entire past loss of earnings award should be set aside because plaintiff did not testify as to  his job duties, his hours and his wages except to the extent that he presented in evidence his W-2 statements for 2008. The trial judge agreed, in part, reducing that aspect of the verdict to $75,000. The appellate court, though, reinstated the entire $150,000 verdict for past loss of earnings finding that plaintiff’s documentation was sufficient and his claim for past wages was not speculative.

Plaintiff’s wife of 26 years, Maritza Corena, was awarded damages for loss of consortium in the sum of $55,000 ($40,000 past, $15,000 future – 10 years). These awards were affirmed on appeal over defendants’ argument that they were excessive and based simply on her testimony that “everything” changed after the accident and her husband “does nothing” around the house. There was more, though. Plaintiff himself testified that for almost three months after the accident his wife would give him showers in the kitchen sink and wash his leg. Also, before the accident the couple would go out dancing, go to parties and visit family members, things he could no longer do. Furthermore, he described how frustrated he was regarding his disabilities and how this led to his losing his temper and fighting with his wife.

 

 

On January 23, 2009 Elgin McEachin was driving his 2003 Chevy Trailblazer southbound on Saratoga Avenue through its intersection with Park Place in Brooklyn. At the same time, a New York City Police Department lieutenant was on the job driving his unmarked 2005 Ford Escape SUV eastbound on Park Place intending to make a right turn and head southbound on Saratoga Avenue. The two cars collided violently in the intersection and the then 49 year old McEachin was injured.

In the ensuing lawsuit, a Kings County jury determined that the crash was 85% the fault of the police officer (with 15% of the blame assigned to Mr. McEachin).

The jury then awarded plaintiff pain and suffering damages in the sum of $1,100,000 ($600,000 past – 4 1/2 years, $500,000 future – 20 years).

In McEachin v. City of New York (2d Dept. 2016), the pain and suffering awards were reduced to $750,000 ($400,000 past, $350,000 future).

As set forth in the court’s decision, plaintiff sustained injuries to his lumbar spine and his left knee. Here are the injury details:

Left Knee:

  • Tri-compartment degenerative arthritis with grade four chondromalacia (extensive cartilage damage) requiring arthroscopic surgery on 3/20/09 to remove torn meniscal fragments
  • Physical therapy for six months after surgery
  • Constant and chronic pain leaving plaintiff unable to walk for long periods, bend down or stand up without pain, play basketball or lift weights, or pick up his seven year old daughter
  • Needs total knee replacement surgery in the future

mri-of-patellar-disorders-39-728

Back:

  • Lumbar disc fissures causing low back pain with radiculopathy
  • Three sessions of very painful epidural steroid injections
  • Experimental spinal cord implant procedure (to block the transmission of pain) in October 2009 leaving plaintiff with wires extruding from his back and a remote control device to control electric impulses
  • Permanent implantation of spinal cord stimulator device in December 2009 leaving plaintiff with three 28 inch long wires and a battery pack all inside his body (the battery pack implanted into one of the buttocks must be replaced every 5-7 years)

Spinal_Cord_Stimulator-1-small

Inside Information:

  • Plaintiff had been in prior motor vehicle accidents including one in 2003 in which he injured his lower back. He testified, though, that the 2003 injury resulted in minor treatment and he fully healed quickly.
  • Plaintiff injured his left knee in 1993 while playing football following which he underwent surgery for a torn anterior cruciate ligament; however, he fully recovered from that injury as evidenced, for example, by the fact that for many years thereafter until before the 2009 accident he played in a basketball league without pain or disability.
  • The defense did not call any medical experts of its own to testify as to plaintiff’s injuries and/or their causation; plaintiff called both his knee surgeon and his back pain management physician.
  • The jury deliberated over a three day period at one point finding that the police officer was negligent but had not proximately caused plaintiff’s injuries (a finding they reversed after additional deliberations).
  • At the close of the case, one of the jurors commented on the record that “[a]s much as we disagreed on things, I think every single person, juror, wanted to do the right thing. I think the moral responsibility of this jury is something I am really proud of about this country.”

On December 20, 2008 Anthony Waring was employed as a housekeeper at Sunrise Assisted Living in Yonkers.

Sunrise Assisted Living in Yonkers, NY
Sunrise Assisted Living in Yonkers, NY

It had snowed the night before and Mr. Waring’s first order of business that morning was to shovel snow off the outside walkways. To do that, he had to get a shovel from the newly constructed outdoor shed in the back of the property. After doing so, he slipped and fell on the shed’s downward sloping exterior ramp.

As a result of his fall, Mr. Waring, then 22 years old, sustained a back injury that prevented him from returning to his job and he sued the property owner claiming that he fell because the ramp was three times as steep as that permitted under the building code and the it lacked handrails as required by the code.

In the Bronx County lawsuit (venue was based upon Mr. Waring’s residence), the jury returned a verdict finding the defendant fully at fault and awarding plaintiff pain and suffering damages in the sum of $600,000 ($100,000 past – four years, $500,000 future – 31 years).

In Waring v. Sunrise Yonkers SL, LLC  (1st Dept. 2015), both the liability and  damages verdicts have been affirmed.

As set forth in the appellate court decision, plaintiff sustained two bulging cervical discs and three lumbar herniations with impingement, can perform only sedentary work and will require surgery and/or a spinal cord simulator and continuing pain management.

lumbar disc herniation with impingementpinge

Here are additional injury details:

  • herniated discs at L3-4, L4-5 and L5-S1 impinging upon nerve roots with nerve damage and radiculopathy at L4-5 confirmed by an EMG
  • three epidural steroid injections
  • three months of physical therapy
  • permanently disabled from engaging in heavy labor
  • unable to play with his two young sons
  • permanent, chronic back pain whether sitting, lying down or walking short distances
  • doctor’s orders to refrain from lifting anything heavier than 15 pounds, twisting, bending, kneeling and sitting or standing for more than 15 minutes at a time
  • future surgery required – laminectomy discectomy and spinal fusion

In addition to pain and suffering damages, the jury also awarded plaintiff:

  • lost wages in the sum of $480,000 ($80,000 past, $400,000 future) and
  • medical expenses in the sum of $750,000 ($250,000 past, $500,000 future).

After the verdict, the trial judge issued a decision reducing (a) the future lost wages award to $200,000 in view of plaintiff’s age and his conceded ability to engage in sedentary labor and (b) the future medical expense award to $65,000 ( the cost of the spinal cord stimulator).

Inside Information:

  • While the court decision mentions that bulging cervical discs were among plaintiff’s injuries, by the time of trial plaintiff’s neck pain had improved to the point that his attorney told the jury they “are not asking for any monies with regard to his neck.”
  • Plaintiff had been employed at defendant’s facility only three months or so before this incident and he’d fallen once before on the job when it had rained and the ramp was slippery. That time, he hurt his wrist but continued to work.
  • Defense counsel was repeatedly admonished by the trial judge for injecting hearsay statements into her questions and making legal arguments before the jury. At one point, the judge told the jury that her actions were improper and that she “should know better and has not been following the court’s instructions.”

On February 6, 2008, livery taxicab driver Alfonso Robles was involved in a crash with another car in Port Chester. He ended up in the hospital emergency room and in his ensuing lawsuit commenced on May 21, 2009 against the other driver and vehicle owner, on January 24, 2012, a Westchester County jury apportioned liability at 65% on the defendant driver and 35% on Robles.

The same jury then considered damages in a separate trial. They found that plaintiff’s injuries merited a pain and suffering award of $800,000 ($400,000 past – four years, $400,000 future – 37 years). Plaintiff’s motion seeking an increase in damages was denied by the trial judge in a post-trial decision on July 20, 2012.

On appeal in Robles v. Polytemp, Inc. (2nd Dept. 2015), the award has been affirmed.

As set forth in the appellate court decision, plaintiff, 37 years old at the time of his accident, sustained disc herniations requiring both cervical and lumbar spinal fusion surgeries.

Cervical fusion post-op image:

cervical fusion4

Here are the injury details:

  • Herniated discs at C4-5, C5-6 and C6-7 with radiculopathy
  • Surgery #1 on 3/31/09: two level cervical discectomy and fusion with six screws and a titanium plate inserted
  • Herniated discs at L4-5 and L5-S1 with radiculopathy
  • Surgery #2 on 8/18/09: two level lumbar fusion and laminectomy at L4-5 and L5-S1 with six screws and and a rod screw construct
  • Continuing and permanent spinal pain and radiculopathy requiring narcotic pain medication and leaving plaintiff with weakness of both arms and legs
  • Unable to work as a vehicle driver, unable to bend or carry
  • Unable to return at all to activities previously enjoyed such as dancing, running and soccer

Cervical radiculopathy – pain and other symptoms from the irritation of cervical spine nerves – can affect various parts of the neck, shoulders and upper extremities:

cervical radiculopathy

The jury determined, as set forth in its verdict sheet, that plaintiff failed to use an available seatbelt and that his recovery should therefore be reduced by $200,000. New York law that provides that non-use of an available seat belt, and expert testimony in regard thereto, is a factor which the jury may consider, in light of all the other facts received in evidence, in arriving at its determination as to whether the plaintiff has exercised due care, not only to avoid injury to himself, but to mitigate any injury he would likely sustain. Plaintiff argued successfully on appeal that the $200,000 reduction was improper because there was insufficient (expert) proof that plaintiff’s use of a seatbelt would have mitigated his damages.

Inside Information:

  • In closing arguments, plaintiff’s counsel  asked the jurors to award his client $5,000,000 for pain and suffering. Defense counsel argued that plaintiff should be awarded nothing at all because he had pre-existing degenerative discs in his spine, the impact between the cars was minimal and could not have caused the injuries claimed and that any injuries at all were due to non-use of a seatbelt.
  • It appears that the jurors discounted plaintiff’s second surgery (lumbar fusion) and agreed with the testimony of defense expert orthopedic surgeon Robert Israel, M.D., who stated that there was no casual connection between the accident and that surgery and that plaintiff could return to work without restrictions. Spinal surgeon Sebastian Lattuga, M.D., testified for the plaintiff.
  • The trial was hard fought on both sides with veteran trial lawyers Nick Gjelaj for the plaintiff and Sim R. Shapiro for the defendants.