On August 15, 2013, Lillyan Rosenberg received her third and final acupuncture treatment for groin pain from Jing Jiang at Jing-River Accupuncture. In addition to acupuncture needles, Dr. Jiang used a heat lamp that caused third degree burns and permanent scarring,

In the ensuing lawsuit, the 87 year old plaintiff claimed that the heat lamp should not have been used, she was left unattended and the doctor failed to respond to her complaints regarding the lamp. The defendants conceded liability and in a damages only trial, on January 27, 2016, the Queens County jury awarded plaintiff pain and suffering damages in the sum of $175,000 ($150,000 past – 2 1/2 years, $25,000 future – five years). Her husband was awarded $25,000 (past only) for  his loss of consortium claim.

The defendants appealed claiming that they did not get a fair trial because (a) some questions plaintiff’s attorney asked were leading and (b) plaintiff’s expert dermatologist testified regarding medical history given to him by the plaintiff.

In Rosenberg v. Jiang  (2d Dept. 2017), both defense claims were rejected by the appellate court and the judgment was affirmed.

Defendants challenged the severity of plaintiff’s injuries only through cross-examination (about possible cosmetic procedures that might lessen the visibility of scars) but they did not offer any expert medical testimony. They suggested that Ms. Rosenberg’s wounds took longer to heal because she is a diabetic and they noted that her scars are not generally visible because they are on a part of plaintiff’s body that is covered by clothing. Defendants did not, though, challenge the amount of the damage awards either in a post-trial motion or on appeal.

Inside Information:

  • In closing arguments, plaintiff’s counsel asked the jury to award $800,000 whereas defendants’ counsel suggested an award “in the neighborhood of $50,000.”
  • Plaintiff’s appellate counsel, Arnold E. DiJoseph, III, argued that the appeal was frivolous in view of the conceded liability, “terrible” burns and permanent scarring and he argued that even if a new trial were ordered, defendants  “could not have done better than they did” already.

 

 

Christopher Peat was working as a floor refinisher on July 1, 2003 in an apartment at Fordham Hill, a nine building cooperative apartment complex in the Bronx.

The Entrance to Fordham Hill

Mr. Peat, then 37 years old, was applying sealer to the floor of a vacant apartment when he heard a “whooshing” sound. He looked over his shoulder and saw a blue wall of flame headed towards him that he could not escape – before he knew it, his entire body was engulfed in flames.

In that tragic instant, Christopher Peat’s life was forever changed. He was severely burned over most of his body and was hospitalized for many months undergoing excruciating surgical procedures and treatment.

It turns out that the fire was caused when vapors emitted  by the floor sealing lacquer were ignited by an open flame from the pilot light in the apartment’s stove.

A lawsuit followed and on June 24, 2011, after 16 days of trial, a Bronx jury returned a verdict finding the apartment complex’s owner, Fordham Hill Owners Corp., fully at fault (it should have shut off gas in the apartment prior to plaintiff undertaking his work) and awarding Mr. Peat pain and suffering damages in the sum of $16,000,000 ($10,000,000 past – 8 years, $6,000,000 future – 32 years).

The jury verdict both as to liability and as to the amount of damages has now been affirmed in Peat v. Fordham Hill Owners Corp. (1st Dept. 2013).

The $16,000,000 affirmed for pain and suffering in this case is by far the most allowed by an appellate court in New York in a burn injury case.

Previously, the courts approved the following amounts in major burn cases:

As set forth in the appellate court decision, Mr. Peat sustained second and third degree burns over 50% of his body requiring 15 surgeries, extensive physical and occupational therapy and causing significant depression and post-traumatic stress disorder.

Plaintiff was also awarded $2,681,323  for medical expenses ($481,323 past plus $2,200,000 future – 32 years). This award was based upon the testimony and life care plan of plaintiff’s physical medicine and rehabilitation expert Joseph Carfi, M.D. who in turn based his conclusions as to plaintiff’s future medical needs upon the testimony of plaintiff’s plastic surgery expert Robert Goldstein, M.D. and the testimony of plaintiff’s psychiatrist Paul Ladopoulos, M.D. The defense did not call any medical experts to testify.

Here are additional injury details:

  • As he fell to the ground, afire, plaintiff heard his flesh sizzle like “bacon on a skillet” and smelled “burning flesh in the air.”
  • He ran down 17 flights of stairs and was still on fire for six minutes until firemen came and extinguished the fire on his body.
  • Peat was rushed to Jacobi Medical Center where he was admitted for over three months and underwent 14 surgical procedures (debridements, escharotomies, grafts and a tracheostomy).
  • Peat was transferred to Burke Rehabilitation Hospital for over three months of physical and occupational therapy.
  • He returned to the hospital in November 2003 for surgery of his right axilla – a scar contracture release procedure to help improve range of motion of his right shoulder and arm.
  • Heterotopic calcifications in his elbows causing mobility and range of motion deficits.
  • Limited use of hands and deformity of several fingers.
  • Extensive scars on his face, hands, shoulder, thighs, buttocks and torso.
  • Constant pain, sensitivity and decreased sensory appreciation.

Inside Information:

  • Before the verdict, plaintiff had demanded $9,000,000 to settle whereas the defense offered $5,000,000.
  • In summation, counsel for Fordham Owners suggested $2,500,000 for pain and suffering if plaintiff were to prevail on liability. Plaintiff’s counsel suggested that the jurors award between $22,000,000 and $33,000,000 for pain and suffering.
  • Mr. Peat did not receive any medical treatment for his burns during the six years leading up to trial, a fact the defense argued, unsuccessfully, demonstrated that future medical expenses in the millions of dollars were “completely unnecessary” and that claiming them amounted to “piling on.”
  • The defense argued strenuously and in detail that the injuries in the Weigl, LeiMoskowitz and Whitfield cases were far greater than those in the Peat case and that therefore there was no basis for the appellate court to affirm the “runaway verdict” in the Peat case. Plaintiff countered that Mr. Peat’s burns covered much more body surface than in the other cases and that applying current inflation adjusted figures in those cases puts them in line with, or makes their awards more than, the numbers in Peat. The appellate judges in Peat did not address this issue or explain in any meaningful manner the justification for affirming a pain and suffering verdict that was twice the amount of any such verdict previously permitted for similar injuries.
  • Although there was evidence that plaintiff could no longer work, his claim for loss of earnings was withdrawn, apparently because his prior earnings were “off the books” and he hadn’t paid income taxes.

UPDATE:

On May 13, 2014, the Court of Appeals denied defendants’ motion for leave to appeal.  Amicus curiae briefs were filed on behalf of The Voice of the Defense Bar, The Defense Association of New York and Law Reform Alliance of New York.

On June 14, 2006, at about 3:30 p.m., then 72 year old Irene McDonald attempted to board a train at the New Hyde Park Long Island Rail Road (the LIRR) station when she fell through a 12 inch gap between the train station platform and the train door.

Here is the LIRR train station where Ms. McDonald fell:

Ms. McDonald fell in up to her chest with her feet on the ground, facing the train, and with her back against the platform. She was lifted out by fellow passengers but her legs were injured and she later sued the LIRR claiming that the gap constituted a dangerous and unsafe condition.

Trial in the case, McDonald v. Long Island Rail Road (Supreme Court, Queens County; Index # 2772/06), began on January 16, 2009. Plaintiff argued that the LIRR was negligent and fully liable for Ms. McDonald’s injuries because the 12 inch gap exceeded the defendant’s own standard of seven to eight inches and the LIRR was aware of the problem and failed to correct it. The jury agreed, finding the defendant 100% at fault and awarding Ms. McDonald $175,000 for her injuries ($110,000 past – 2 1/2 years, $65,000 future – 12 years).

There was evidence at the trial that the plaintiff already knew about the gap, in that she was a regular traveler at, and quite familiar with, the New Hyde Park train station but that, nevertheless, she looked straight ahead (and not down) as she was trying to board the train. These facts, the LIRR argued on appeal, required some finding of comparative negligence on plaintiff’s part.

On appeal, the defendant’s position as to comparative negligence has now been upheld. In McDonald v. Long Island Rail Road (2nd Dept. 2010) – the liability verdict has been reversed and a new trial ordered on the issue of liability.

Also, the appellate judges ruled that $110,000 for Ms. McDonald’s past pain and suffering is excessive and that award should be reduced to $75,000. They affirmed the jury’s $65,000 award for future pain and suffering. As a result, if this case is tried again $140,000 will be the total pain and suffering damages award which will be reduced by the percentage of plaintiff’s comparative negligence assessed by the new jury.

Ms. McDonald’s injuries were not specified by the appellate court. They included:

  • extreme fright at the scene of the accident
  • bruises to both shins with an eschar (area of dead skin) on one leg requiring daily nursing care
  • skin loss with a graphic cavity on one leg requiring a split thickness skin graft under IV sedation
  • follow-up treatment using silver nitrate to burn down the area of healing that had become hypertrophic or raised
  • permanent depression, numbness and pain at the wound site inhibiting activities of daily living and precluding swimming

Skin graft:

The appellate court cited only one case to justify its holding that Ms. McDonald’s past damages award should be reduced from $110,000 to $75,000 – Goady v. Utopia Home Care Agency (2nd Dept. 2003). In that case, the court reduced to $150,000 ($125,000 past, $25,000 future) a $300,000 pain and suffering award for an infant ($200,000 past, $100,000 future) who sustained a small 2nd degree hot iron burn that resulted in a keloid scar removed during a surgical procedure primarily undertaken to address complications from unrelated cerebral palsy. The boy had intense pain at the moment of the burn and some pain for months thereafter but did not require hospitalization or a skin graft.

Inside Information:

  • A hotly contested issue at the trial of McDonald v. Long Island Rail Road involved the admission of evidence of other gap-related accidents over many years at LIRR stations. The parties disagreed over whether the other accidents occurred under substantially the same conditions as Ms. McDonald’s accident and the judges cautioned that in the new trial any evidence of prior accidents must meet the substantial similarity standard.

November 4, 2001 began as a great day for ten year old Leonari Jones. She was an active, playful, happy kid who had a sleepover party and was on the subway returning home to the Bronx with her  friends and babysitter. When the train pulled in to her stop at 174th Street, though, Leonari’s life took a tragic turn.

As she exited the subway car, Leonari placed her left foot on the platform but her right foot became caught between the doors. She tried to dislodge her leg but couldn’t and the train pulled out so she started to hop on her left leg to keep up with the increasing speed of the moving train.

This shows similar city subway doors but Leonari wasn’t going in, she was trying to get out:

What followed was terrifying and gruesome.  I will spare you all of the details. The train sped up to 30 miles per hour and dragged Leonari about 300 feet before it stopped and she fell 30 feet to a secondary platform. During those terrifying moments, Leonari’s skin was ripped off and her leg was broken as her hands, stomach and body were dragged, burned and scraped along the subway platform. She was rushed to the hospital where she was diagnosed with:

  • Right leg Salter II fracture of the distal tibia with the fracture line extending through the tibia and into the growth plate
  • Second degree wounds and abrasions akin to burn injuries to approximately 10% of her body surface area

This poor 10 year old then underwent a nine day hospitalization in which her right leg was placed in acast from her torso to her ankle and, every four to six hours, she underwent excruciatingly painful tissue debridement to treat her burns. To the extent she could sleep at all, Leonari’s sleep was interrupted constantly with nightmares and screaming. At trial, she claimed she suffered significant post-traumatic stress symptoms.

Leonari started using crutches after two months (due to hand bandages she could not use them before) and finally after five months she began to walk unassisted (though with a permanent limp).

Trial on damages only resulted in a Bronx County jury verdict on August 14, 2006 in the sum of$3,000,000 for pain and suffering ($1,500,000 past – 5 years, $1,500,000 future – 63 years). In a decision released two days ago, the appellate court in Jones v. New York City Transit Authorityaffirmed the entire award and declared that the amount did not deviate materially from what would be reasonable compensation (the standard for review under New York’s CPLR 5501).

This is a stunning decision, especially in view of several facts not mentioned:

  • Plaintiff never underwent any surgery for either her leg fracture or her burns
  • Plaintiff didn’t undergo any psychological treatment until January 2005 when she first did so at the urging of her lawyers

We know that New York juries can and do render amazingly high (and low) pain and suffering verdicts from time to time; however, that’s why CPLR 5501 was enacted and that’s when appellate courts get into the action and modify the awards up or down as they see fit. Why in this case, though, did the appellate court allow $3,000,000 in pain and suffering damages to stand without any modification downward in view of what appears to be a non-catastrophic injury case? This is neither a case dealing with a paralyzed person, nor one on lifetime pain medication, nor one with an inability to walk at all.

Digging into all of the facts and reviewing the parties’ briefs on appeal, we have uncovered the following additional facts not mentioned in the court’s decision:

  1. Battle of medical experts: Plaintiff’s orthopedic expert was world-renowned David P. Roye, M.D. He’s a pediatric orthopedist who operates on kids 200 times a year. The defense orthopedist (who performs 70% of his work in the litigation field) conceded on the stand that Dr. Roye has superior knowledge in this field.
  2. Plaintiff’s broken leg was two centimeters shorter than her other leg due to the accident, and Dr. Roye, a published expert on leg length discrepancy, testified that this was quite significant and disabling, resulted in pelvic obliquity (a crooked pelvis) and will require surgery to repair. 
  3. Plaintiff was previously very active in multiple sporting activities, can no longer engage in any of them and now walks with a limp.
  4. Plaintiff’s right knee dislocated many times since the accident and she will require at least one knee surgery in the future.
  5. Plaintiff produced a plastic surgery expert who testified that her scars all over her abdomen, underneath her breasts and on both legs are permanent. Defendant failed to produce an expert to rebut this testimony and the jury was able to evaluate the scars in person at trial.
  6. Both parties presented expert testimony as to plaintiff’s psychological injuries. Plaintiff’s expert testified that she has a textbook case of post-traumatic stress syndrome with significant symptoms including nightmares, persistent fears, sleep problems, difficulty relating to people, concentration problems and flashbacks; while the defense expert disagreed on the basis of a 20 minute examination without having reviewed the medical records.
  7. Plaintiff’s mother testified that as a social worker with clinical training, she sought faith based counseling before turning to psychotherapy for her daughter. Clearly, this blunted the defense argument about the lack of “formal” counseling until her lawyers suggested it.

The defense conceded that this was a horrible incident and that the plaintiff deserved compensation for her pain and suffering; however, they argued that $3,000,000 was unreasonably high. In what may have been a tactical mistake, the defense suggested on appeal that they only challenged the future pain and suffering award of $1,500,000 and that the past pain and suffering sum (also $1,500,000) was reasonable. Then, they suggested that the court view the future pain and suffering verdict as having been rendered by the jury in three equal parts for orthopedic, dermatological and psychological injuries (i.e., $500,000 for each category). Finally, the defense asked the court to reduce the future pain and suffering award from $1,500,000 to $550,000 ($350,000 orthopedic, $100,000 each for dermatological and psychological).

The court must have considered the $350,000 concession by the defense for future orthopedic pain and suffering against the $500,000 (hypothetical) award to be a minor variance and not worth reviewing and then it simply declined to modify the (hypothetical) awards of $500,000 for future dermatological pain and suffering (against a $100,000 concession and 63 years of scars and disfigurement) and $500,000 for future psychological  pain and suffering (against a concession of $100,000 and 63 years of post-traumatic stress symptoms).

The only two cases cited by the court in its decision were Lopez v. Gomez (2003) and Carl v. Daniels (2000), each of which we discussed previously, here.  Each dealt with a youngster with a femur fracture ($1,500,000 affirmed for past pain and suffering in Lopez; $4,800,000 affirmed for past and future pain and suffering in Carl) and each seems relevant, though not dispositive.

Jones  v. New York City Transit Authority involved a unique combination of injuries with reciprocal exacerbating effects. It may, therefore, turn out to be a case that’s not oft-cited but it’s clearly one that grabbed the attention of the jury and so impressed the jury, the trial judge and the appellate court that $3,000,000 was awarded and affirmed for pain and suffering in a non-catastrophic injury case. It deserves to be studied.

Burn injuries are without doubt among the most painful injuries a person can experience. They come from a wide variety of accidents such as fires in the home or a car, electrical shocks on the job and even operating room lights during surgery. Recent court decisions in New York have upheld verdicts for pain and suffering damages in burn injury cases from $300,000 to $3,600,000.

In Hawthorne v. Vehicle Asset Universal Trust (Index # 16721/04; Supreme Court, Queens County; 12/11/08), a 40 year old construction worker, James Stanton, was literally burned alive in his car when he could not escape after a motor vehicle accident.

He sustained deep burns of his entire body and endured 10 minutes of conscious pain and suffering before death. A Queens County jury awarded Mr. Stanton’s estate $10,000,000 for his pain and suffering but the trial judge found that the jury had been over-emotional and rendered an excessive award. The judge ordered a reduction to $2,500,000.

In another recent big damage burn injury case, a Columbia County jury awarded a 24 year old electrician $3,600,000 for his pain and suffering ($300,000 past, $3,000,000 future). Jordan Neissel was attempting to repair a college’s circuit breaker when he was shocked and severely burned. Although only about 7% of his external skin was damaged, the jury’s award was upheld in full by the appeals court in Neissel v. Rensselear Polytechnic Institute. The appeals court took into account the fact that plaintiff sustained significant and permanent muscle and nerve loss, lacks feeling in his arms and suffers from post-traumatic stress including flashbacks, nightmares, social isolation and panic attacks.

Two less gruesome recent cases show that even without massive injuries, burn cases result in significant pain and suffering verdicts that will be upheld by the courts.

In Paruolo v. Yormak, a 50 year old school guidance counselor suffered from elbow pain that was ultimately diagnosed as a chondral injury requiring surgery to remove loose bone fragments. During the surgery, an operating room light was negligently maintained and caused third degree burns on Mr. Paruolo’s elbow and arm. He didn’t even know he had burn injuries until there days after surgery when his bandages were removed and there was visible blistering. He had infections, underwent six days of hospitalization to administer antibiotics and he needed a debridement and skin graft from his thigh.

Mr. Paruolo sued and liability was conceded but the amount of damages could not be agreed upon and trial ensued in Westchester County. The jury returned a verdict of $300,000 for pain and suffering ($275,000 past, $25,000 future). Plaintiff appealed claiming the future damages award was too low and the appeals court agreed finding that the future pain and suffering sum should be increased to $150,000 with the result that the final award was $425,000 ($275,000 past, $150,000 future).

The court was moved by the facts that plaintiff had two permanent and embarrassing scars on his elbow and thigh, the scars could not be exposed to sunlight and posed a heightened risk of skin cancer, he had to wear long sleeve shirts in warm weather and would suffer from all of these for 25 years.

Burns are classified according to degrees:

In Stefanescu v. City of New York, a 30 year old transit authority track worker was working in the subway when contact with a metal plate energized the third rail and caused a flash fire. Mr. Stefanescu was set on fire and suffered second degree burns to his entire face. While he claimed residual symptoms such as tightness, heightened sensitivity to temperature and sunlight and post-traumatic stress, plaintiff required minimal hospitalization, standard care and no skin grafts or surgery. At the time of trial, his scars were no longer visible. The Kings County jury awarded plaintiff $750,000 ($650,000 past, $100,000 future) for his pain and suffering but the trial judge reduced the verdict to $200,00 ($150,000 past, $50,000 future).

The appeals court finally set the verdict at $300,000 ($250,000 past, $50,000 future) finding that $250,000 for Mr. Stefanescu’s past pain and suffering was reasonable because of the great deal of pain  he suffered in the four year period from the accident to the trial. As to future damages, though, the court found $50,000 reasonable in view of plaintiff’s minor treatment and lack of residual damages or permanent injury.

Pain and suffering verdicts in burn injury cases are evaluated buy the appellate courts in most respects similar to the way they evaluate damages in other pain and suffering scenarios – what’s reasonable depends on the severity of the injury, the type and length of treatment (especially surgery), the activities the plaintiff can no longer do or can do only with limitations or pain and the expected period of future pain and suffering (when permanent, the period is the number of years plaintiff is expected to live).

In burn cases, there are several unique additional factors that the courts (and juries) consider:

  • post-traumatic stress – with credible psychological testimony and a gruesome mechanism of injury (e.g., fire causing facial burns)
  • scars – burns leave some of the ugliest permanent scars and when in the face they can be shocking
  • skin graft procedures – which can be excruciatingly painful and leave scars on other parts of the body

Here’s what the skin graft procedure looks like:

As the cases demonstrate, verdicts for pain and suffering damages in burn injury cases vary widely, just as the types of burn injuries vary (i.e., based on the degree – 1st, 2nd or 3rd, based on the number of skin grafts required and whether there is permanent scarring). We will continue to report on burn injury cases as they come to trial and are ruled on by juries and judges.