Eye and Vision Injuries

On March 25, 2004, Johnson Devadas, a 25 year old pharmacist, consulted with ophthalmologist Kevin Niksarli, M.D. to determine his candidacy for Laser-Assisted In-Situ Keratomileusis (known as LASIK – a procedure that uses a laser to correct certain vision problems and reduce a person’s dependence on glasses or contact lenses).

Dr. Niksarli evaluated Mr. Devadas and found him to be a good candidate for the procedure which was then performed upon both of his eyes on April 7, 2004. He followed up with the doctor the next day, a week later and a month later.

On February 21, 2007, Devadas next (and last) returned to the doctor with complaints of blurriness and double vision. He’d developed ectasia, a progressive thinning and bulging of the corneas that causes diminished visual function.

On May 31, 2007, Devadas filed a medical malpractice lawsuit against Dr. Niksarli claiming that the doctor failed to disclose the risks of the procedure and that he would not have undergone the surgery had adequate disclosure been given beforehand.

It turns out that Devadas had a mild or early form of keratoconus known as forme fruste keratoconus that (a) was not but should have been diagnosed by Dr. Niksarli and (b) contraindicated the LASIK surgery.

On June 10, 2009, after a nine day trial, the Manhattan jury returned a verdict in plaintiff’s favor finding that the defendant committed malpractice by (1)  performing surgery that was contraindicated and (2) failing to obtain informed consent prior to the surgery.

The jury awarded pain and suffering damages in the sum of $3,100,000 ($100,000 past – five years, $3,000,000 future –  45  years).

On appeal, the defense argued that the pain and suffering award was excessive because after the surgery plaintiff had near 20/20 visual acuity.

Plaintiff persuasively countered, though, that visual function has two components – quantity (i.e., visual acuity) and quality – and that his visual quality was so impaired that it left him with many permanent, significant deficits including:

  • double vision
  • blurry vision (with resulting headaches)
  • starbursts and halos
  • chronic dry eyes (limiting his ability to wear contact lenses to six hours a day and leaving him with severely diminished functional vision for 18 hours a day)
  • poor night vision resulting in inability to drive at night (after contacts are removed due to intolerance)
  • inability to resume recreational bowling or billiards
  • diminished ability to complete household tasks including cooking and home repairs

In Devadas v. Niksarli (1st Dept. 2014), the appellate court affirmed both the liability finding and the pain and suffering damages awards.

In addition to pain and suffering damages, Devadas was awarded (and the appeals court sustained)  $60,000 for past loss of earnings and $20,000 a year for 37 years for future loss of earnings. These awards were based, in part, on plaintiff’s inability to fill as many prescriptions as he used to and the additional costs incurred when he had to hire a pharmacy technician to serve as another pair of eyes to double-check his accuracy.

Inside Information:

  • The loss of consortium claim was dismissed on appeal because the continuous treatment doctrine that allowed plaintiff to avoid the statute of limitations defense (2 1/2 years in medical malpractice cases) has been held by the courts to be personal to the recipient of the medical treatment and does not extend to spouses.
  • Plaintiff had signed an informed consent form document on the day of surgery but claimed that the administration of Valium shortly before he reviewed and signed the form was inappropriate. Also, there was a handwritten informed consent note that plaintiff argued, through an expert forensic chemist who specializes in the examination of questioned documents, was created by the defendant years after the surgery and intentionally artificially aged by him.
  • Plaintiff’s attorney, Todd J. Krouner, has successfully prosecuted dozens of LASIK and related eye medical malpractice cases and is the premier attorney for LASIK cases in New York.

James Sanders abused alcohol and heroin and he ended up in jail for a year. As a condition of his parole, he was placed in a methadone program at Kings County Hospital. At about 10 a.m. on December 12, 2002, the 41 year old Sanders went to his methadone clinic, got "medicated" and as he left he ran into an old friend with whom he drank five ounces of pure rum.

Methadone plus rum, a bad combination:

    

Sanders then went to the subway station to go home but at about 11 a.m. he fell onto the tracks and was run over, sustaining horrendous injuries.

We discussed the ensuing lawsuit and many of the injury details, here, and we predicted an appeal would follow the jury’s verdict (a) that the subway motorman was 70% at fault and Sanders 30% and (b) awarding Sanders $6,000,000 for his pain and suffering damages (after apportionment).

In a stunning victory for the plaintiff in Sanders v. New York City Transit Authority (2d Dept. 2011), the appellate court has now affirmed the verdict in its entirety – both as to the liability split and the reasonableness of the damages awarded.

Affirming $8,550,000 for pain and suffering (before apportionment for comparative fault) was not the stunning part of this decision. After all, plaintiff sustained the following injuries:

  • below-the-knee amputation of his right leg
  • total blindness of one eye (resulting from trauma to his sixth cranial nerve)
  • loss of much of the big toe on his left leg
  • chronic phantom pain and pain where his prosthesis meets his stump
  • fractures of facial bones and his mandible (jaw) with chronic facial and mouth pain
  • severed right ear that had to be sewn back onto his face
  • head injury with piece of skull removed and post-traumatic seizures requiring anti-seizure medication Depakote

Man learning to walk again with a below-the-knee prosthesis:

The court did not cite any prior cases to support its affirmance on damages; however there are two cases that are quite relevant as to the amount of pain and suffering damages:

  1. Firmes v. Chase Manhattan Automotive Finance Corp. (2d Dept. 2008), previously discussed by us, here$5,000,000 reduced from $7,400,000 for a 23 year old who sustained a below-the-knee amputation in a motor vehicle accident, underwent 11 surgeries and was unable to use a prosthesis
  2. Villaseca v. City of New York (1st. Dept. 2008),  previously discussed by us, here$5,000,000 reduced from $8,000,000 for a 50 year old blinded in one eye who had pre-existing macular degeneration in the other eye, thus leaving him with almost no vision at all

The big battle in this case – both at trial and on appeal – was over liability. Plaintiff contended that he fell when the train was hundreds of feet away. Defendant argued that plaintiff fell in front of a train that was no more than 20 feet away. The parties (and their engineering experts) agreed that a subway motorman will not be liable and an accident is unavoidable when a person falls onto the tracks only 20 feet away from a train moving as slow as 15 m.p.h (as here); however there was also agreement that there would be liability, and an accident would be avoidable, where a person falls onto the tracks when a train at 15 m.p.h. is 100 or more feet away.

Conceding the mathematics of perception and stopping time, plaintiff’s trial attorney, the noted Gary Pillersdorf, boldly stated in his opening statement: "But if in fact my client fell when the train was 20 feet away, I apologize for wasting your time."

So the big issue to be determined at trial was how far away the train was when Sanders fell onto the tracks. And that’s where things got very heated at trial and on appeal.

Defense counsel argued that Sanders was not telling the truth, "he’s lying to you from start to finish" and that there could be no basis for finding the motorman at fault in view of the following evidence:

  • the motorman swore at trial that plaintiff fell when the train was no more than 20 feet away
  • a disinterested witness stated the train was 10-12 feet away, but certainly no more than 30-40 feet
  • plaintiff stated at a pre-trial deposition that he had no idea where the train was when he fell ("I don’t remember where the train was when I fell.")

Plaintiff’s counsel contended that:

  • Sanders testified at trial that just before he fell he looked and the train was not yet in the station
  • the disinterested witness was not credible and not disclosed until until the middle of trial although he gave a statement to defendant’s investigators four days after the accident

Inside Information:

  • Defense counsel argued that the case should have been dismissed because before trial plaintiff submitted a sham affidavit stating the train was hundreds of feet away when he fell. The affidavit was brought to plaintiff one night by a law firm employee who told him that unless he signed it his case would be dismissed. It contradicted plaintiff’s deposition testimony (that he had no idea where the train was) and the defense argued the affidavit was feigned, especially so because at trial plaintiff admitted he’d never read it before signing. The appellate court rejected this argument simply stating that there was no conflict between plaintiff’s affidavit and his deposition testimony.
  • Plaintiff testified at trial that he recovered memory of the accident as a result of attending group therapy sessions.
  • Plaintiff’s engineering expert, Nicholas Bellizzi, testified that the subway car should have come equipped with a black-box-data recorder and that the defense hid crucial information pointing to liability by failing to produce the recorder. The defense argued that there was no such evidence and that this claim was an improper diversion.
  • Plaintiff at first denied drinking rum but in view of toxicology evidence to the contrary, he admitted drinking in a car with his friend just before the accident (and just after drinking methadone too). Toxicology experts at trial agreed that Sanders was impaired (though not intoxicated).

 

On March 2, 2002 at about 5:30 p.m., Miguel Beato returned home from work as a porter. As he walked through the courtyard of his apartment complex at 35-46 65th Street in the Woodside section of Queens, New York, he was confronted by an unknown gang of men. He asked them to move out of his way and they responded by with a 15 minute attack in which Miguel was beaten continuously and severely.

Beato faced a gang of hoods like this:

Beato sustained injuries all over his face, including:

  • an orbital (eye socket) fracture
  • a mid-face (depressing and caving in the area from the eye to the teeth) fracture
  • a displaced eye
  • a markedly displaced fractured nose that obliterated his sinus

The attackers fled but were caught, convicted and jailed. Beato, then 39 years old, sued the building owner claiming that the owner negligently failed to provide adequate security. A Queens County jury agreed and apportioned liability 75% to the owner and 25% to the attackers. Pain and suffering damages were then assessed at $5,000,000 ($1,500,000 past – 6 years, $3,500,000 future – 15 years). The trial judge then ruled that the award was excessive and should be reduced to$3,500,000 ($1,500,000 past, $2,000,000 future).

The building owner appealed arguing that there was no basis for any liability against it because the attack was neither foreseeable nor the result of any negligence on its part. Also, the defendant urged that the future pain and suffering award of $2,000,000 was still excessive (no challenge was made to the reasonableness of the $1,500,000 for past pain and suffering).

Last week, in Beato v. Cosmopolitan Associates, LLC, the appellate judges agreed with the defense and dismissed the entire case. Plaintiff’s testimony that he previously complained of loitering and suspected drug sales in the building lobby was ruled insufficient to establish the requirement that the assault was foreseeable.

The appellate judges in Beato did not address the arguments as to the reasonableness of the damage awards stating that in view of the dismissal on the merits those issues were academic. Here, though, we can and will address those issues and we do so with the benefit of the parties’ submissions to the court, including their briefs on appeal.

First, let’s take a look at some details as to the injuries in this case. The injuries are generically described above but here are their technical terms:

  • comminuted fractures of both sides of his nasal bones
  • comminuted fractures of his left orbital floor and nasal septum
  • fractures of the left lamina papyracea and lateral superior wall extending to the frontal maxillary sinus and significant nasal lacerations

Blowout fractures are casued by direct trauma to the globe, like this:

If ever the term “getting his face punched in” applied, this is the case. Photographs of the plaintiff as he appeared shortly after the attack were shown to the jury (over defense objections) and no doubt they were stunned and sympathetic.

Now, let’s see what happened to Mr. Beato after the attack. He was immediately taken by ambulance to the hospital and admitted. He underwent two complex surgeries – one addressed the repair of his sinus and septum and the other consisted of open reduction and internal fixation of the orbital floor fracture.

At trial, six years after the incident, Beato had difficulty breathing due to his sinus injury, scars on his face and his surgeon stated he’d need additional surgeries to redo his nose, take out the plate and open his sinus and would have lifelong pain, difficulty breathing, physical and visible deformities and the need for narcotic pain medication.

It’s usual in injury cases that the defense will avail itself of its right to have the plaintiff examined by one or more doctors of its choosing to verify or dispute the severity (and causation) of a plaintiff’s injuries. The defense doctors are then usually called to testify at trial as to their findings. In this case, though, the defense chose to keep its doctors out of court and the plaintiff therefore sought and obtained a missing witness charge. That’s where the judge tells the jury that it may draw negative inferences from the defendant’s failure to call its own physicians. Clearly, that hurt the defense in this case and the jury accepted as true all of the dire future consequences testified to by plaintiff’s own doctors.

The defense gambled in this case in failing to call its doctors to testify and then after the verdict in declining to challenge the $1,500,000 past pain and suffering. In the end, the gamble paid off.

Before it did, though, there was substantial argument and disagreement over the propriety of the award for future pain and suffering. Would $2,000,000 have been sustained had liability not been overturned? I think not. There is a dearth of precedent as to sustained multi-million dollar verdicts for facial injury pain and suffering. Also, defense counsel claimed plaintiff made a good recovery and that plaintiff’s doctor’s claim that plaintiff would need lifelong pain medication was belied by the fact that at trial he took nothing more than over the counter antihistamine.

We’ve reviewed facial injury cases, here, especially several in the $200,000 to $500,000 range.

There are very few cases awarding $1,000,000 or more for facial injury pain and suffering. Here are some:

  • Simon v. Sears Roebuck & Co., Inc. (2nd Dept. 1986) – $1,000,000 for loss of eye following car accident
  • Stiuso v. City of New York (2nd Dept. 1996) – $1,750,000 ($1,000,000 past – 4 years, $750,000 future – 15 years) for loss of an eye and fractured jaw
  • Storms v. Vargas (2nd Dept. 1998) – $4,000,000 ($3,000,000 past – 10 years, $1,000,000 future – 32 years) for 31 year old police officer in car accident who sustained crush fractures all over his face requiring 26 separate surgical procedures and 16 one week or more hospitalizations prior to trial and was left with an artificial eye, limited vision and the need for additional surgeries once every two years for life

Without minimizing what Mr. Beato went through and will be left with for his life, it appears that had Beato’s $2,000,000 future pain and suffering verdict been reviewed by the appellate court it would have been reduced substantially given the case law discussed above and especially in view of Storms v. Vargas where the injuries appear to be much more severe.

Inside Information:

  • the jurors appear to have been confused in that plaintiff offered proof of $52,000 in medical expenses incurred to the date of trial but the jury awarded $250,000 for that element of damages
  • further evidence of juror confusion: they awarded $1,500,000 for future medical expensesbut the trial judge reduced that sum to $200,000 as the doctors’ testimony as to the costs future treatment justified no more than that
  • had liability been upheld, the defendant would have had to pay the entire damages award even though the jury found others (the criminals) were 25% at fault and that’s because under New York’s CPLR Article 16 a defendant in this type of case will be liable for the full damage award when found to be 50% or more at fault

A 35 year old healthy construction worker was helping to build a new Lowe’s Home Depot in Orangeburg (Ulster County), New York on November 14, 2002 when he fell off the roof 22 feet striking his head on the ground below.

After 63 days in the hospital (57 of them in a coma), 11 surgeries and 65 more days in a rehabilitation hospital,  Robert Doviak was left totally and permanently blind, with a sense of touch that was seriously compromised, partial loss of hearing and no sense of smell or taste. Additionally, he had substantial orthopedic injuries including fractures of his left femur, several cervical vertebrae, both zygomatic arches and other bones in and about his face and eyes, his left hand and his right wrist.

Doviak’s wife hired Finkelstein & Partners, a well known personal injury law firm in Newburgh, New York and they began a lawsuit against Lowe’s and others based on New York’s Labor Law which provides that owners of commercial buildings under construction are liable for injuries suffered by workers when they involve falls from heights. A judge granted plaintiff’s motion for summary judgment on liability grounds and the case then proceeded to a jury trial to determine the amount of damages.

In Doviak v. Lowe’s  Home Centers, Inc., an Ulster County jury found that plaintiff was entitled to $1,000,000 for his pain and suffering ($200,000 past; $800,000 future – 32 years) plus additional amounts for his lost earnings and medical expenses and his wife’s loss of consortium. The jury’s total award for all elements of damages was thus $3,700,000.

Since each element of a future damages verdict that is more than $250,000 must under New York law (CPLR 5014) be calculated to present value (usually resulting in a significantly lower figure) before a judgment is given to a plaintiff,  the $3,700,000 jury total really represented only about $3,000,000 for the plaintiff.

In a post-trial motion, the pain and suffering award was found by the trial judge to be unreasonably low and a new trial was directed to be held unless defendants agreed to increase the pain and suffering sum to $4,100,000 ($1,200,000 past and $2,900,000 future). Plaintiff appealed and the appeals court this week (properly relying, in part, on Villaseca v. City of New York, a loss of vision case we discussed here) added another $1,000,000 to plaintiff’s future pain and suffering award which is now $5,100,000 ($1,200,000 past; $3,900,000 future). The new total (including the earnings, medical expenses and consortium claims) is $9,300,000 – a present value of about $7,000,000.

As always, and especially in catastrophic injury cases like this one, no amount of money ever makes  the injured plaintiff feel like the whole thing was worth it. Neither $7,000,000 nor $100,000,000 would be enough for any sane person to undergo what Robert Doviak has undergone and will suffer with for the rest of his life.

Now for the inside information. During the trial, the defendants offered on the record to settle for a present value of $9,250,000. Plaintiff’s then attorney, without plaintiff present, rejected that offer on the spot. The next day, the defense increased the settlement offer to $10,000,000. Again it was rejected. Finally, still before the verdict, the defense made a final settlement offer –  $12,000,000. Doviak says the offer was rejected by the Finkelstein firm without bothering to consult him.

Did Doviak’s lawyers fail to inform him of the $12,000,000 offer?

After the trial, the plaintiff fired Finkelstein and hired two new firms. Levy Phillips & Konigsberg (a New York City personal injury law firm best known for its extensive advertising about and its mass representation of plaintiffs in asbestos exposure lawsuits) was hired to handle the appeal decided this week. Another firm was hired to sue the Finkelstein firm for malpractice. In the malpractice suit, Finkelstein & Partners admits that the $12,000,000 offer was made but denies it acted improperly.

Doviak and his new attorneys are claiming that errors were made by Doviak’s trial counsel which cost Doviak  $7,000,000 ( the difference between the settlement offer and the final appellate court figures). Here are some of the matters relevant to the ongoing malpractice dispute:

  •  significant settlement offers must be conveyed to clients and if rejected then the rejection should either be on the record or in writing (with a full explanation of the consequences also on the record or in writing)
  •  attorneys (and their injured clients) should not let greed serve as the foundation of a personal injury lawsuit – during summation, Doviak’s attorney asked the jury to award Doviak $60,000,000 for pain and suffering, an amount Doviak’s new attorneys say is preposterous and evidence of awful advocacy and which defense counsel says revealed the greed that served as the foundation of plaintiff’s case

UPDATE: After a seven week trial, the jury in the attorney malpractice case found no malpractice. Plaintiff then challenged his prior law firm’s legal fees in the underlying action and that challenge has now finally been resolved in Doviak v Lowe’s Home Centers, Inc. (3d Dept. 2015) overwhelmingly in favor of the prior law firm.

 

 

 

Will New York become a haven for lousy golfers? That’s a possibility given an appeals court ruling last week in the case of two (theretofore) friends and golfing buddies who took to the course on October 19, 2002. One of their threesome got hit in the eye by an errant golf shot from another in the threesome, sustained a traumatic retinal detachment, lost sight in his eye, sued his buddy and has now had his case dismissed as a matter of law.

Golf course injuries can be quite severe and lawsuits concerning them seem to be on the rise. The courts, think tanks and commentators have repeatedly addressed the situations under which there will be liability for misdirected golf shots. When one must one yell "fore," and when should an injured golfer’s case be dismissed because he was out of position? These are just some of the issues being discussed in the cases and by others such as  Walter Olson who chronicles the high cost of our legal system at Overlawyered (where today he mentions the case here discussed).

In Anand v. Kapoor, plaintiff and defendant, both physicians, had each hit two shots on the first hole of Dix Hills Park Golf Course. Dr. Anand was 20 feet or so ahead of Dr. Kapoor and at an angle 50 degrees away from the hole. Without seeing Dr. Anand or even knowing where he was, Dr. Kapoor hit what must have been one of the poorest wedge shots in history – it shanked 50-80 degrees and went towards the green no more than 20 feet – it went smack into Dr. Anand’s left eye!

Nobody is ahead of the golfer and all are safe here:

Dr. Anand claimed that Dr. Kapoor should have yelled "fore" before hitting or at least when he realized his shot was, shall we say, off-line. Way off line. Dr. Kapoor, for his part, claimed that the plaintiff knew that golfers should wait behind those hitting precisely to avoid injuries from errant shots.

Also, the defendant correctly noted that the obligation to yell fore arises only when another person person is:

  1. in the intended line of flight, or
  2. in a position such that danger to him is reasonably anticipated.

Dr. Anand was neither in the intended line of flight nor even in an area that it might be expected would be dangerous.

The court noted that it’s long been the law in New York  (see Jenks v. McGranaghan) that a golfer has a duty to give a timely warning to other persons within the foreseeable ambit of danger (i.e., to yell "fore"); however, on the facts in this case the court then held that plaintiff was at so great an angle away from the defendant and the intended line of flight that he was not in the foreseeable danger zone.

It’s not like the plaintiff was aiming for the defendant, like in this illustration:

So what exactly does "foreseeable danger zone" mean? Well, as we lawyers say, its meaning is fact specific.

  • In the case of Richardson v. Muscato, it meant that a golfer on the tee who was hit on the head by a ball from another golfer on a different hole was in the zone when the defendant admitted he saw the plaintiff ahead about 40 feet before taking his shot.
  • In the case of Rinaldo v. McGovern, it meant that a person driving his car on a road adjacent to a golf course was not in the zone when a ball came crashing into his windshield.

Clearly, Dr. Anand bore responsibility for his own actions in the new case – he went ahead of the pack and placed himself outside the line of sight of his playing partner. It’s not that the court is blaming the victim (and we all surely must sympathize with the plaintiff who suffered a devastating injury here); rather, the court is declaring that the doctrine of assumption of the risk applies. Under that doctrine, as we have noted before (coincidentally, in another golf injury case), a plaintiff may be barred from recovering for his injuries when it is shown that he voluntarily engaged in dangerous activity and he knew or should have known of the risk of harm.

So, yes, a golfer should still yell "fore" when he hits an errant shot and if he does not he may be found liable in court if his shot injures another golfer when the plaintiff:

  1. is not in the line of sight,
  2. has gone ahead of the area where the golfer’s ball lies who is furthest from the hole, or
  3. otherwise acts without regard for his own safety.

New York is not, as I suggested tongue in cheek above, likely to become a haven for lousy golfers because of the new court decision. High courts in magnificent golf spots like Hawaii have ruled the same way. Golf, anyone?

UPDATE: On December 21, 2010, New York’s Court of Appeals affirmed the intermediate appellate court ruling dismissing the complaint in Anand v. Kapoor (2010) concluding that being hit without warning by a "shanked" shot while one searches for one’s own ball reflects a commonly appreciated risk of golf.

 

 

 

 

It never ends, does it? Another careless person fell onto the New York City subway tracks and was grievously injured. Then he lawyered up, sued the city and a Brooklyn jury recently found the city’s motorman 70% at fault with the result that the injured fellow was awarded $5,950,000 for his pain and suffering.

Walter Olson’s Overlawyered follows these types of cases better than anyone, he finds cases no one else does and he points out the policy considerations we should be thinking about but juries don’t. And we have recently addressed the whole issue of subway accidents and resulting large jury verdicts.

In this case,  Sanders v. New York City Transit Authority (Index # 34003/03; Supreme Court, Kings County; 3/6/09), the jury heard evidence that on December 12, 2002, James Sanders fell onto the tracks as a subway car in Brooklyn was coming into the station at about 15 mph. The jury was also apprised of the facts that Sanders had been returning from methadone treatment and had drunk pure rum before entering the station (a fact he initially denied).

Then, there were these additional facts:

  • Sanders could not recall why he fell
  • the motorman’s speed was no more than 15mph
  • witnesses testified that the train was no more than 20 feet away when Sanders fell onto the track

This is what it must have looked like just before impact:

So how could any jury conclude that the 41 year old Sanders was not 100% at fault for his own injuries? The answer: the "last clear chance" doctrine. That’s a long established legal principle, related to the concept of comparative negligence (the apportionment of negligence between plaintiff and defendant) that says a plaintiff may win when, despite the plaintiff’s own negligence, the defendant was aware of the danger faced by plaintiff and negligently failed to take available means to avoid the accident.

The defense argued that the train’s motorman could not have seen Sanders until it was too late and that the last clear chance doctrine was inapplicable. After six days of trial, the jury disagreed and found plaintiff only 30% at fault.

As I said, the injuries were grievous, including:

  • right leg amputation at the knee
  • nerve damage causing permanent blindness in one eye

Clearly, the injuries sustained and the pain and suffering Mr. Sanders will endure for the rest of his life are enormous. Therefore, I hesitate to mention, but many have this opinion, so it must be asked:

Wouldn’t accidents like this be eliminated by waiting for the approaching subway car away from the platform, in the area of this woman?

And then there is a significant policy issue too. Should a plaintiff whose own negligence contributes to an accident and his own injury be permitted to recover money damages from a defendant who is also partially at fault. New York has long said yes and juries simply assign respective percentages of fault to the plaintiff and defendant and then the plaintiff recovers accordingly. In other states, such as Virginia, where prominent personal injury attorney Doug Landau discusses this issue and this very case, there would be no recovery at all for a plaintiff found to be as little as 1% at fault.

The "gross" pain and suffering award (i.e., the total before reduction for plaintiff’s percentage of fault) was $8,500,000 ($2,500,000 past; $6,000,000 future). Applying a 30% reduction results in a $5,950,000 pain and suffering verdict for the plaintiff.

As is often the case, both in big damage cases like this one and in cases in which plaintiff’s own conduct appears to be instrumental in an accident, there will be an appeal. We will follow this case as it makes its way through the appeals process and report back with any significant dvelopments.

A devastating traumatic eye injury resulted in a $1,000,000 settlement in the midst of testimony in a lawsuit brought by a 42 year old man in Florida who was hitting golf balls at a driving range when his ball struck a granite marker used to separate each golfer and then ricocheted right into his eye socket. 

The plaintiff suffered the following injuries:

  • a severely ruptured globe of his eye,
  • an inferior orbital blowout fracture with nerve and muscle entrapment and
  • retinal damage.
  • After several surgeries, the eye could not be saved and the plaintiff was fitted for a prosthetic eye.

The case, Jones v. Westchase Golf and Country Club, available here thanks to Walter Olson at Overlawyered, is controversial because in athletic injury cases, and especially in golf course injury cases, the doctrine of assumption of the risk usually carries the day for the defense resulting in no recovery at all for the injured plaintiff.

Under the doctrine of assumption of the risk, a plaintiff may be barred from recovering for injuries when it can be shown that he voluntarily engaged in dangerous activity and that he knew or should have known of the risk of harm.

So, the typical errant or hooked shot that strikes another golfer on the course will likely go nowhere for the injured person. These cases are usually dismissed before trial. And they should be.

The Jones case, though, involves facts that are both more damaging to the plaintiff’s case and more damaging to the defendant’s case. I mean, it was his own golf ball! He couldn’t even hit it out of the area of his stall. True, but the plaintiff brought in an expert in golf course design who said ropes should have been used instead of granite dividers.The case settled after that testimony.

The case has generated some snickering among lawyers on Twitter (h/t  Nicole Black at Sui Generis). But let’s face it: there are lots of lousy golfers at driving ranges hitting balls in every direction. The range owner surely has some safety obligations towards its patrons. It appears that the defense thought the jury would agree with the plaintiff’s expert and find that ropes should have been used and would have been safe.

So would this be safe? What about the golfers next to one another? Might not they be hit?

The case was probably defensible and may well have resulted in no recovery at all by the plaintiff but the driving range had only a $1,000,000 liability insurance policy and the plaintiff was very sympathetic in that not only had he undergone extremely painful surgeries and then lost his eye but also he was diagnosed with esophageal cancer that his attorney was prepared to try to connect medically to the original accident due to stress and the need to spend large amounts of time on his stomach.

Had the jury agreed with the plaintiff, the damages could well have been much more than $1,000,000 so it appeared that the defendant convinced its insurance company to pay the policy limit and thus protect the driving range company from having to pay from its own funds any verdict in excess of the $1,000,000 of coverage.

The New York City Law Department has released statistics regarding negligence lawsuits against it in 2008 and the top recovery was for an eye injury to a school guidance counselor in the case of Villaseca v. City of New York (1st Dept. 2008).

The New York Post reports it this way:

"$8.5 million to a guidance counselor Rodrigo Villaseca, who lost vision in this right eye after an emotionally disturbed kindergartner slammed a broken door in his face at PS 306 in The Bronx."

The door was broken for over a year after the city school knew that the door’s hydraulic controller was not operational. This was a $55 part that was specifically installed so that the door could not be slammed shut – a particularly useful device given that this was the only door into a room where the most uncooperative and unruly kids were placed until they calmed down.

Here’s the piece of equipment that would have saved the city $8,500,000 for a mere $55 cost:

  Source: DrillSpot, Inc.

In reporting on the $403 million total of negligence awards against the city for last year, the paper mentions several other large suits as well and notes that the total is a 6%  spike over the year before. I don’t know whether the reporter was insinuating that the Villaseca case (and the others) are so-called runaway or excessive verdicts or whether she is suggesting, as others such as The Pacific Research Institute and NYTortReformNow.org do, that New York has an unfair and unreasonable litigation environment for defendants in negligence cases due in part to there being no limit (or "cap") on pain and suffering damage awards. I do know that issues such as whether there are too many or too few negligence lawsuits, whether plaintiffs are awarded too much or too little for their pain and suffering and whether damage caps would be fair or even accomplish what its advocates seek are all hotly disputed. For the plaintiffs’ side of these issues see: New York State Trial Lawyers Association and TortDeform.com

In the Villaseca case, I can say with confidence that, as usual, a short media account cannot and will not explain even one-half of what happened and why such a multi-million dollar pain and suffering recovery makes sense.

Here are the injuries Mr. Villaseca suffered:

  • detached retina of the right eye
  • lost all vision in right eye after 9 surgeries
  • constant pain
  • need for surgical implantation of false eye

Source: VitreoRetinal Surgery, P.A.

Enough? No, there’s more:

  • the teacher had a pre-existing macular hole condition in his other eye that left him with only peripheral vision in that other eye and the result was extremely limited vision of any kind at all
  • inability to work
  • need to have his wife help him move about

The Bronx County jury was apparently so impressed with and upset by these injuries that it awarded Mr. Villaseca $8,000,000 for his pain and suffering damages alone. An appeals court found that $5,000,000 was the proper pain and suffering amount (and with an additional $3,500,000 mainly for lost earnings and medical expenses the total was therefore $8,500,000).

Other recent cases involving significant pain and suffering damage awards for eye and vision injuries include:

  • Wilson v. Galicia Contracting & Restoration Corp. (Court of Appeals 2008) – $700,000 pain and suffering award for a 16 year old boy who was struck in his left eye by a falling metal object. After surgery to remove the object, he was left with permanent retina damage.
  • Fresco v. 157 E. 72nd St. Condominium (1st Dept. 2003) – $2,000,000 pain and suffering verdict for a 35 year old laborer with complete blindness in one eye from a carpentry accident in which a nail flew into his eye. He had a pre-existing condition in his other eye with the result that he’s now left nearly totally blind.
  • Torricelli v. Pisacano (1st Dept. 2004) – $500,000 pain and suffering medical malpractice award after cataract surgery failed requiring two more surgeries and significant overall vision deterioration.