Economic Damages

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On February 6, 2014, David Flowers was working at a construction site in Buffalo when he was struck by a load of falling steel rebar causing injuries to his shoulder.

In his ensuing lawsuit, the 34 year old ironworker plaintiff was granted summary judgment on his Labor Law 240(1) claim against the project owner and general contractor.

In the damages trial, the jury awarded plaintiff pain and suffering damages in the sum of $150,000 (all past – three  years), past medical expenses (but no future medical expenses) in the sum of $40,205 plus lost earnings damages in the sum of $1,682,750 ($240,516 past, $1,442,234 future – 18 years).

In Flowers v. Harborcenter Development, LLC (4th Dept. 2019), the appellate court vacated the award of damages for lost earnings and ordered that a new trial be held on damages for for past and future lost wages only.

Plaintiff was earning about $64,000 a year as an ironworker before the accident. Immediately following, he was unable to work at all. A year later, in April 2015, he returned to light duty ironwork as a supervisor but only for a couple of hours a day for a week and a half. He was unable to continue and his treating physicians testified he was permanently unable to return to ironwork thereafter. He was, though, cleared for light duty sedentary work.

Three years after the accident, about six weeks prior to trial, plaintiff was hired as an assistant town assessor, a part-time (19.5 hours a week) mostly sedentary position earning $11 an hour, that he was engaged in at the time of trial and that he hoped would become full-time.

Defendants sought a so-called mitigation charge whereby the trial judge would have instructed the jury that plaintiff had a duty to mitigate his earnings loss damages by taking advantage of any reasonable employment opportunity he may have had (such as seeking vocational rehabilitation assistance and/or obtaining a better, higher paying and sooner acquired job). The trial judge declined to make the charge, in part, because plaintiff had in fact obtained a light-duty job and had thereby discharged his obligation to mitigate his earnings losses. The appellate court, though, found that the mitigation charge should have been given because there was a question of whether the part-time job that plaintiff took was a reasonable mitigation of his damages.

Inside Information:

  • The $150,000 pain and suffering award was not challenged on appeal. It was based upon the fact that plaintiff sustained a ligament tear in his shoulder that required two arthroscopic surgeries to repair. He also claimed to be suffering from post-traumatic stress disorder (PTSD).
  • In an October 2016 car loan application, plaintiff falsely stated that he was then employed as an ironworker so that he’d show enough earnings to qualify for the loan. In fact, he was then unemployed.
  • The part-time assessor’s job plaintiff held at the time of trial was arranged for him by his attorney in this lawsuit, a fact the defense contended, unsuccessfully, represented a violation of the rules of professional conduct governing attorneys.

 

On May 20, 2008, Alexander Nayberg was stopped at a red light in Garden City when two other cars collided in the intersection and one of them struck Mr. Nayberg’s car in the rear.

In the ensuing litigation, a Nassau County jury found that the two colliding drivers were each 50% at fault for the accident and Mr. Nayberg’s injuries and they awarded pain and suffering damages in the sum of $1,600,000 ($600,000 past – six  years, $1,000,000 future – 20 years).

In Nayberg v. Nassau County (2d Dept. 2017), the appellate court affirmed the damages awards.

Here are the injury details:

  • herniated disc at C6-7 requiring cervical discectomy and fusion surgery three years later with the insertion of a plate and four titanium screws

  • additional cervical fusion surgery required in future at levels(s) above and/or below C6-7
  • fractured teeth and bridge requiring seven extensive dental  procedures including extractions, implants and bone grafts

Plaintiff, 54 years old when the accident occurred, had been employed at Bloomingdale’s earning $70,000 a year as an operating director in its restaurant division for seven years until a few months before when he was laid off in an economic downturn. He then formed his own construction company and  one week before the accident, he was offered his first job but he was physically unable to take it. When this case was tried, plaintiff was still in pain, unable to help his wife with household chores, pick up anything more than 10 pounds or engage in construction work.

The jury also awarded plaintiff, and the appellate court affirmed, damages  for lost earnings in the sum of $773,751 ($447,858 past – six years, $325,893 future – 16 1/2 years). The defense argued that the entire lost earnings award was speculative and should be vacated because it was based upon plaintiff’s expected lost income from a start-up business. The appellate court rejected the argument noting that plaintiff established this claim with reasonable certainty through his own testimony and that of an expert economist and that the defendants failed to submit any evidence in opposition.

The jury also awarded damages for future medical expenses (for additional spinal surgery) in the sum of $200,000 (10 years) and future dental expenses in the sum of $25,000 (two years).

Inside Information:

  • There was no award for loss of consortium damages claimed by Mr. Nayberg’s wife.

On March 14, 2013 John Gore was stopped at a red light in Pleasantville when a car from behind, driven by Melissa Cardany, struck his car. Mr Gore, then 47 years old, was taken by ambulance to the local hospital where he complained of pain in his neck, back and left shoulder.

At the time of the accident, Mr. Gore was in the course of his employment, driving several teenage residents of Jewish Childcare Association in Pleasantville (pictured above).

Gore sued the other driver seeking money damages for his pain and suffering, lost earnings and medical expenses related to the accident. On November 5, 2014, he was granted summary judgment as to liability and the matter proceeded to a trial on damages only.

The Westchester County jury determined that plaintiff’s injuries did not meet any of the threshold categories under Insurance Law Section 5102 and they accordingly awarded him nothing at all for pain and suffering (or future medial expenses). They did, though award him damages for  lost earnings in the sum of $906,000 ($156,000 past – three years, $750,000 future – 15 years).

The defendant made a post-trial motion asking the judge to set aside the verdict and direct judgment in her favor as a matter of law or, alternatively, to direct a new trial. Essentially, the defendant argued that because the jury found that plaintiff had not sustained a permanent or significant injury, and was not entitled to any future medical expense award, the award of $906,000 for lost earnings was speculative and there should be no lost earnings award at all. Plaintiff, who never returned to work  (he’d been a residential supervisor at a home for at risk teenagers) argued that there was sufficient medical testimony to establish that he was disabled and permanently unable to perform his job duties.

The trial judge granted the defendant’s motion and set aside the verdict as to all damages.

In Gore v. Cardany (2d Dept. 2018), the appellate court reinstated the award for past lost earnings in the sum of $156,000 while affirming the trial judge’s decision to vacate the award for future damages.

Here are the injury details:

  • treated and released from the ER on the day of the accident and same five days later at a different hospital
  • chiropractic treatment began 11 days after the accident and continued for about two years
  • three epidural injections in lower back and neck in connection with bulging discs
  • left shoulder arthroscopic surgery on 4/29/14

Defense doctors testified that plaintiff’s shoulder complaints were degenerative and pre-existing (in view of osteophytes as shown on an MRI) and he was not disabled either before or after his surgery which was merely a shaving of the congenitally deformed acromion and a debridement of some inflamed tissue. They also contended that plaintiff’s neck and back complaints were non-accident related, degenerative and typical for a man of plaintiff’s age. Post-trial, Plaintiff did not contest the jury’s findings as to Insurance Law Section 5102 and their resulting decision to award no damages for pain and suffering.

Plaintiff had been earning $52,000 a year and his job entailed supervising adolescents but there was no testimony that it involved heavy labor or heavy lifting and none of his doctors testified that they advised him to stop working permanently. Plaintiff testified that his position had been eliminated about six months after the accident and his on-line searches for new employment had been fruitless.

Inside Information:

  • Defense counsel argued in his summation that plaintiff was entitled to no award at all for any damages; plaintiff’s counsel requested $450,000 for pain and suffering damages plus $900,000 for lost earnings.
  • There was no expert vocational rehabilitation testimony.

On April 20, 2011, Thomas Tornatore, then 51 years old, was wrestling with his nephew when he sustained an injury to the base of his neck. Five days later, Mr. Tornatore sought treatment from a chiropractor. After his fourth and final treatment, which included chiropractic manipulations, he had severe pain in his neck that radiated down his arm. Within a week, he was diagnosed by an orthopedic surgeon and told he had a herniated disc and needed spinal surgery.

In his ensuing medical malpractice lawsuit against the chiropractor, Mr. Tornatore claimed that the manipulations were inappropriate because plaintiff suffered from pre-existing conditions, including a degenerative cervical spine with spinal stenosis. The defense argued that (a) plaintiff was properly treated and (b) the treatment did not injure plaintiff or worsen his pre-existing condition in view of the testimony of the defendant’s medical expert contending that spinal MRI scans from before and after the treatment did not show any significant change.

The Onondoga County jury agreed with plaintiff finding the defendant negligent and awarding pain and suffering damages in the sum of $500,000 ($200,000 past – four and a half years, $300,000 future – 20 years) and future medical and life care expenses in the sum of $903,407 (20 years).

Defendant appealed, arguing mainly that the future medical and life care expenses award was excessive and, in any event, it should be vacated because the testimony of plaintiff’s life care expert was wrongfully admitted.

In Tornatore v. Cohen (4th Dept. 2018), defendant’s arguments were rejected and the judgment was affirmed in all respects.

The appellate court’s opinion does not discuss plaintiff’s injuries. Here are the injury details:

  • herniated disc at C5-6 with large sequestered fragment compressing nerve, caused by defendant’s aggravation of plaintiff’s pre-existing degenerative cervical spine

  • decompressive surgery with fusion of cervical spine at C4-5, C5-6 and C6-7
  • surgical revision of hypertonic scars from first surgery
  • permanent residual neck pain and stiffness with limitation of range of motion
  • difficulty sleeping and driving, unable to lift grandchildren

The award for future medical and life care expenses was based upon the testimony of plaintiff’s vocational rehabilitation specialist and life care planner. It included $474,000 for 20 years of medications (including Gabapentin, Tramadol and Hydrocodone) and $268,000 for pain management (including epidural injections 3-4 times a year at a cost of more than $3,000 each). The jury rejected parts of plaintiff’s claims for future expenses and awarded nothing at all for a spinal cord stimulator and surgery to implant it.

Inside Information:

  • Plaintiff’s witnesses included her orthopedic surgeon and internists in addition to her expert chiropractor and life care planner. The defense called only an expert neuroradiologist.
  • Plaintiff’s criminal history that defendant was precluded from using related to two matters. One was a 1979 youthful offender adjudication on sodomy charges following a consensual relationship with another then under-18 year old boy. The other was a 1997 charge of soliciting a minor for sex in which plaintiff was found guilty by a jury but adjudication of guilt was withheld by the judge and he was given probation.
  • The prior MRI scan reviewed by the defendant’s medical expert was from 2002 after plaintiff sustained a work-related injury. He was asymptomatic and did not undergo any treatment between 2002 and the current incident.

On August 7, 2010,  Anil Sehgal was preparing to stop at a red light at the intersection of Fifth Avenue and West 57th Street in Manhattan when his car was struck from behind by another vehicle. Mr. Sehgal’s wife, Renu, was in the front passenger seat. Both claimed serious injuries as a result of the crash and sued the other driver (and the owner of the other car).

Plaintiffs moved for partial summary judgment on the issue  of liability. After denial, the motion for summary judgment was granted on appeal following which a damages only trial was held.

The Queens County jurors returned verdicts awarding Mr. Sehgal pain and suffering damages in the sum of $200,000 ($150,000 past – three years, $50,000 future – 18 years). They also awarded him damages for future medical expenses in the sum of $505,050 (18 years) and his wife damages for her loss of her husband’s services/consortium in the sum of $100,000 (past only).

In a  post-trial motion, defendants argued that both the future medical expenses and loss of services awards are excessive and against the weight of the evidence. The trial judge denied the motion and on appeal In Sehgal v. www.nyairportbus.com, Inc. (2d Dept. 2017), both awards have been affirmed.

Here are the injury details as to Mr. Sehgal:

  • herniated disc at C5-6 requiring anterior cervical discectomy, corpectomy and fusion surgery with instrumentation and allograft
  • herniated discs at L1-3
  • partial thickness tearing of right shoulder rotator cuff requiring arthroscopic surgery
  • unable to bend, stand for long periods of time or lift anything heavy

Plaintiff’s claim for an award of future medical expenses was supported by the testimony of Alexandre DeMoura MD. (his spine surgeon) and Ali Guy, M.D. (a physiatrist who prepared a life care plan detailing the expenses including many years of medical treatment, physical therapy, diagnostic testing and epidural injections, as well as future back surgery and an additional neck surgery).

The only expert testimony for the defense was from orthopedic surgeon Gregory Montalbano M.D.  (who opined that Mr. Sehgal’s right shoulder prognosis is very good and should not be problematic in the future, he sustained at most a cervical strain or sprain rather than a herniated disc which in any event was degenerative – not traumatically induced – and he  has no permanent disability or significant limitation).

The defense had intended to impeach plaintiff and Dr. Guy regarding the life care plan by showing that plaintiff’s attorneys, by whom he was employed in a clerical position, had referred him to Dr. Guy “as part of an attempt to build up the monetary value of his claim and not for genuine medical treatment.” At the start of trial, though, the judge granted plaintiff’s application to preclude the defense from asking Mr. Sehgal questions as to how he was referred to Dr. Guy (or his other medical providers).

As to the loss of consortium claim, plaintiff, then 59 years old, testified that he’s become dependent upon his wife and others for many activities of daily living – he can no longer mow the lawn, clean the cars, vacuum the house or help his wife with cooking. Mrs. Sehgal testified that his injuries have affected “his love and affection.” The defense noted that Mr. Sehgal missed only 45 days from work due to his injuries and claimed that his condition has greatly improved and there was no evidence that he could no longer provide the benefits of marriage, including, love, companionship, society and sexual relations.

Inside Information:

  • Mrs. Sehgal claimed disc herniations at C3-4 and L5-S1; however, the jurors determined that her injuries did not meet the serious injury threshold under Insurance  Law Section 5102(d) and they awarded her no damages. She did not appeal.
  • In closing arguments, plaintiff’s attorney asked the jurors to award Mr. Sehgal $1,250,000 in damages for his pain and suffering and Mrs. Sehgal $150,000 for her pain and suffering plus $100,000 for her loss of consortium claim; defense counsel argued that the jurors should “not award the Sehgals anything” because neither sustained a serious injury from the accident.

On September 19, 2009 Frederick Knight went to his son’s automobile race at the Fulton Speedway, a 3/8 mile clay racetrack at County Route 57 in Fulton. He paid a special fee to watch from the pit area behind the track and had been there for two hours standing near his son’s car watching the early races when one of the 80 cars scheduled to race that night backed into him and knocked him to the ground causing serious injuries.

The Fulton Speedway

Mr. Knight, a 69 year old retired truck driver, sued both the driver who struck him and the owner of the track. After a trial in Onondaga County, a directed verdict was entered in plaintiff’s favor and the jury then awarded damages  for (a)  pain and suffering in the sum of $280,000 ($140,000 past – six years, $140,000 future – nine years) and (b) loss of household services in the sum of $440,000 ($140,000 past, $300,000 future – nine years).

In a post-trial motion, the defendants contended that (a) there was no basis for liability in view of a waiver plaintiff signed upon entering the speedway and the application of General Obligations Law Section 5-326 and (b) the loss of household services awards were excessive and without basis (they did not challenge the awards for plaintiff’s pain and suffering). The trial judge denied the motion.

In Knight v. Holland (4th Dept. 2017), the appellate court upheld the liability verdict but reduced the loss of household services award to $100,000.

The court’s decision discusses the waiver and liability issues in detail. Here are the injury details:

  • right intertrochanteric hip fracture requiring open reduction internal fixation surgery with intramedullary rod
  • recurring infections in right hip and knee requiring  removal of hardware from  hip and prior right knee replacement surgeries
  • unable to walk without a walker
  • difficulty standing and sitting, getting into and out of a car and picking up right foot and leg
  • constant right hip and leg pain

At the time of the accident, plaintiff had been living for 14 years with Rayne Dabney who has been confined to a wheelchair her entire life and he helped her with all activities of daily living (including transferring her in and out of bed) . He’d break her chair down into its component parts to get it into their car, help her in and out and put the chair back together. Also, in the past, he did all of their grocery shopping, ran all of their errands and managed their household . Now, he can do none of that.

The appellate court substantially reduced the loss of household services award without setting out any factual basis but, too, there was only little proof at trial in terms of hard numbers relative to the loss of household services claim.

Inside Information:

  • Defendants counterclaimed against plaintiff alleging that his lawsuit was frivolous in light of the waiver and they sought to recover their defense costs from him.

 

 


On June 2, 2010, Rosemary McKnight was a passenger in a city bus which rear-ended a tanker truck on Nostrand Avenue in Brooklyn.

TA bus Nostrand Ave.

As a result, Ms. McKnight, then 48 years old, injured her neck and both knees. In her ensuing lawsuit against the transit authority and its driver, Ms. McKnight’s motion for summary judgment as to liability was granted in April 2011 and the case proceeded to a trial on damages only. On July 18, 2013, the Kings County jury awarded her total damages in the sum of $2,270,000 as follows (and as set forth in the verdict sheet):

  1. $900,000 for pain and suffering ($150,000 past – three years, $750,000 future – 25 years);
  2. $480,000 for lost wages ($80,000 past, $400,000 future – 11 years); and,
  3. $890,000 for medical expenses ($190,000 past, $700,000 future – 25 years).

The defendants appealed arguing that the awards for lost wages were excessive because, before the bus crash, plaintiff had been receiving Workers Compensation and Social Security Disability (“SSD”) benefits from a work-related accident eight years earlier. They also argued that the medical expense awards should be reduced because some of plaintiff’s bills were paid by no fault insurance. There was no challenge to the pain and suffering awards.

In McKnight v. New York City Transit Authority (2d Dept. 2017), the appellate court agreed with the defense to the extent that it ordered a $150,470 reduction of the lost wages awards to take into account the $205 per week plaintiff had received in Workers Compensation benefits since the new accident and that she would receive in the eleven years following the verdict.

comp

Under CPLR 4545, in personal injury lawsuits, the judge may reduce the amount of a plaintiff’s award if he finds that any element of economic loss encompassed in the award will be replaced, in whole or in part, from a collateral source. In this case, as contemplated by the statute, the judge conducted a post-trial collateral source hearing on August 25, 2014 at which the defendants offered evidence that plaintiff’s awards for lost wages and medical expenses should be offset by the Workers Compensation and SSD benefits she had been receiving and which defendants argued she would continue to receive in the future.

The trial judge declined to make any offset; however, the appellate judges disagreed and ordered the $150,470 reduction mentioned above to take into account the Workers Compensation benefits plaintiff had been receiving and, the appellate judges concluded, she would with reasonable certainty continue to receive for the eleven year period of her lost wages jury award.

Ms. McKnight’s earlier accident occurred when she tried to lift a heavy patient who fell while she was a nursing assistant at a senior care facility. As a result, she sustained injuries to her right shoulder and lower back, underwent rotator cuff and lumbar fusion surgeries, was unable to continue that job after about three years of light duty accommodation and was awarded Workers Compensation and SSD benefits.

At the time of her 2010 bus accident, plaintiff was preparing to re-enter the work force, having completed schooling to become a certified medical assistant. Her injuries in the new accident included herniated discs at C4-7, a torn anterior cruciate ligament in one knee and a torn meniscus in the other and required her to undergo cervical fusion and bilateral arthroscopic knee surgeries. She contended at trial that the new accident and injuries prevented her from engaging in any new employment.

cervical fusion3

Inside Information:

  • On the day of the bus accident, Ms. McKnight was on her way to an EKG test that was one of the last things she had to do to become and accept a job as a certified medical assistant.
  • Plaintiff was receiving SSD benefits of $1,080 per month for herself and $470 per month for her twin children (the kids’ benefit ended a month before the collateral source hearing). Thus, defendants sought a $244,300 offset to the lost wages awards. As set forth in the appellate court decision, the proof was insufficient to justify an offset for the SSD benefits. The court also held that the evidence was insufficient to justify any offset for no fault insurance benefits.