On August 14, 2007 Remigiusz Nawrocki was working for a plumbing contractor at a construction site at 205 Huron Street in Brooklyn. While on a ladder drilling holes in a wall, Mr. Nawrocki, then 28 years old, fell to the ground sustaining significant jaw injuries.

At an inquest on December 9, 2015 in his ensuing lawsuit against the owner of the premises (whose answer to the complaint was stricken because of repeated failures to appear at court conferences), a judge awarded plaintiff pain and suffering damages in the sum of $50,000 ($25,000 past – eight years, $25,000 future – unspecified).

Plaintiff appealed, arguing that the damages award was inadequate. In Nawrocki v. Huron Street Development LLC  (1st Dept. 2018), the pain and suffering award was increased to $500,000 ($250,000 past, $250,000 future).

Here are the injury details:

  • open mandible and condylar fractures and impacted tooth
  • facial lacerations requiring sutures and plastic surgery
  • six day hospital admission
  • open reduction and internal fixation with wires, screws and a six hole plate

  • jaw wired shut and unable to eat without straw for eight weeks
  • surgical removal of wires and screws
  • medical treatment completed within three months of the accident but plaintiff claimed continuing pain and had some resulting scars

 

 

On June 15, 2007 at about 1:30 a.m., Gary Gill crossed the street at Flatlands Avenue near 87th Street in Brooklyn intending to go to his parked car. As he opened his car door, another vehicle pulled up and two men jumped out. In the ensuing moments, the men, undercover police officers with the New York City Police Department (the “NYPD”), scuffled with and arrested Gill. He was charged with possession of a weapon and resisting arrest.

arrest cuffs

The officers claimed they saw Gill, then a 34 year old barber, reaching for a handgun but Gill claimed he did not have a gun and was simply reaching into his waistband to show the officers that the bulge they asked him about was simply a phone.

During the arrest, Gill was struck in the face sustaining fractures and a loss of consciousness.

bones of the face

Gill was then taken in handcuffs to Kings County Hospital where he remained for three days, continuously cuffed to his bed, before he was taken to a holding cell for a few hours at Rikers Island and then released on bail.

After his acquittal on all charges, Gill sued the NYPD claiming damages for false arrest, malicious prosecution and battery.

On June 6, 2014, following the trial judge’s charge to the jury as to the elements required to prove the claims, the Kings County jury ruled in favor of plaintiff finding that the police falsely arrested Gill because they did not have reasonable cause to make the arrest, they used excessive force in effecting the arrest and acted maliciously in initiating prosecution.

The jury then awarded damages in the sum of $590,000:

  • $15,000 for the false arrest,
  • $75,000 for malicious prosecution, and
  • $500,000 for battery – pain and suffering for the seven years from the date of the incident to the date of the verdict

In Gill v. City of New York (2d Dept. 2017) both the liability and damages verdicts have been affirmed.

Nowhere in the decision is there any information as to the injuries sustained by the plaintiff. Here are the injury details:

  • displaced fracture of the zygomatic arch with flattening of the left cheek
  • open reduction surgery to repair the fracture using a Gillies Zygoma Elevator
  • displaced nasal fracture
  • trauma to left ear, substantial facial swelling
  • three day admission at Kings County Hospital, plus one day for surgery at Long Island College Hospital on 6/26/07

Gillies approach zygoma fx

Plaintiff required pain killing medication for several months and was left with scarring around his nose. Although surgery was recommended for his nose, plaintiff declined and his nose healed while the scars faded and he made no claim for the scars at trial.

Inside Information:

  • As set forth in the appellate court’s decision, the jury’s verdict sheet included $500,000 for malicious prosecution but lawyers for both sides and the trial judge agreed that this was an error and that the $500,000 was meant for the excessive force battery pain and suffering claim.
  • There was no testimony from any physician and plaintiff did not assert a claim for future pain and suffering. He conceded that he was able to resume all of his pre-arrest activities without limitations.
  • The amounts awarded by the jury were the exact amounts requested by plaintiff’s attorney in his summation.

 

 

 

On October 27, 2008 Robert Parrotta drove to Stacey Killon’s home in Minerva to confront him about Killon’s relationship with Parrotta’s ex-wife. Angry words were exchanged as they stood near an outside porch with Parrotta wielding a baseball bat and Killon a maul handle. Parrotta ended up smashing Killon in the face with the baseball bat.

baseball bat

Killon, 41 years old, sustained extensive facial injuries and he sued the 58 year old Parrotta for damages.

In 2011, a Warren County jury returned a verdict for the defendant finding that he was justified and acted in self-defense in his use of deadly physical force upon the plaintiff; however, a new trial was ordered after an appellate court ruled that the defendant, because he drove 20 miles to plaintiff’s home, advanced to his porch with the bat in his hand and demanded a fight, was the initial aggressor and therefore not entitled to the defense of justification.

self-defense-1-0-s-307x512

On October 4, 2013 the new jury returned its verdict awarding plaintiff $25,000 for future pain and suffering but nothing at all for past pain and suffering. Plaintiff appealed again, this time contending that the damages award were inadequate.

In Killon v. Parrotta (3rd Dept. 2015) the judges ordered an increase in the pain and suffering damages to $350,000 ($200,000 past – five years, $150,000 future – 31 years).

The appellate court decision sets forth a description of plaintiff’s injuries. Here are the injury details:

  • comminuted fractures of the mandible (jaw)
  • mandibular-fracture-13-638
  • bilateral temporomandibular joint (“TMJ”) dislocation
  • tmj dislo
  • parasymphysial comminuted fracture with bone loss
  • nasoseptal fracture
  • dislocation and displacement of the mandible with the loss of three teeth
  • concussion

As a result of his injuries, plaintiff underwent extensive medical and surgical treatment including:

  • initial hospitalization for five days
  • seven surgical procedures including tracheostomies, open reduction internal fixation of fractures and the placement of a mesh crib graft in the mandible defect with a metal bar that visibly protrudes from the cheek

Plaintiff remains in chronic pain with a severe mandibular symphysis deformity, needs a vascularized tissue graft, suffers from numbness, nerve damage and headaches,  is on strong pain medications and has obvious and significant facial scarring.

The defendant argued that the jury’s award was adequate because plaintiff had “minimal past pain and suffering and relatively minor future pain and suffering.” In this regard, defendant asserted that plaintiff (a) was suffering from heavy alcohol intoxication at the time of the battery and therefore felt little pain and (b) has been using pain medication and therefore his ongoing pain and suffering was significantly reduced or minimized.

Inside Information:

  • The trial judge agreed with plaintiff that the damages verdict was improper but his remedy was an overall new trial on damages (as opposed to the appellate court’s determination to go right ahead and order a conditional increase). In post-trial proceedings, the judge stated: “The jury’s recognition that plaintiff would suffer future pain and suffering can only follow the logical conclusion that the future must necessarily have had a past.”
  • Immediately after the incident and before his hospitalization, plaintiff sat on his couch, drank beer, smoked cigarettes. At the hospital, he was combative, attempted to leave and tried to refuse treatment.
  • The defendant was charged with felonious assault but the charges were not pursued.
  • The earlier appellate ruling – that the justification defense could not be considered by the jury – was by a 3-2 divided court. The Court of Appeals will soon weigh in on that issue.

UPDATE: On October 27, 2016, the Court of Appeals held that the intermediate appellate court applied an incorrect test in setting aside the jury verdict and concluding as a matter of law that the defendant was the initial aggressor rendering a justification defense unavailable to defendant during the retrial. Therefore, the high court reversed and and sent the case back for a new trial

 

On March 25, 2002, Arrin Collins was injured when he fell in class at P.S. 168 in the Bronx. No one saw exactly what happened but one of his teachers noticed blood on eleven year old Arrin’s shirt. He’d sustained some severe injuries in and about his mouth and was taken to the school nurse and then by ambulance to the local hospital.

Arrin had been diagnosed as autistic, was essentially non-verbal and was never able to provide an account of how he was injured.

From most accounts, it appears that there was a large multicolored parachute hanging from the ceiling as a decoration and Arrin pulled it down on himself, his feet got tangled up in the parachute and he tripped and fell striking his mouth on a nearby window ledge.

The parachute from Arrin’s class was not produced at trial.

Arrin’s father sued on behalf of his son claiming that Arrin’s injuries were the result of the school’s having failed in its duty to provide adequate supervision. The defendants (the city, its board of education and two teachers) claimed that they provided the proper amount of teachers and paraprofessionals in Arrin’s classroom and, in any event, the accident was instantaneous and therefore not the result of their negligence.

On December 4, 2010, the Bronx jury rendered a verdict finding that defendants negligently supervised Arrin’s classroom and awarded pain and suffering damages in the sum of $4,600,000 ($1,300,000 past – 8 2/3 years, $3,300,000 future – 66 1/2 years).

In a post-trial motion, the defendants argued that the injuries suffered by the plaintiff do not justify the jury’s award, especially in view of the fact that plaintiff’s counsel in summation asked the jury for only $650,000. The trial judge ordered a reduction of the pain and suffering damages award to $250,000 (without specifying the breakdown between past and future).

Both sides appealed – plaintiff arguing that the trial judge’s reduction was unjustified and that the jury’s award was a fair assessment of the injuries, especially considering that Arrin’s disability left him with a  diminished ability to cope. The defendants argued that the entire case should have been dismissed as the school provided reasonable supervision.

In Arrin C. v. New York City Dept. of Education  (1st Dept 2014), the court affirmed both the liability finding against the defendants and the reduction of the pain and suffering damages award to $250,000.

Here are the injury details:

  • fractured jaw
  • loss of two upper left teeth – one was knocked out in the fall, the other was knocked up into Arrin’s upper jaw bone
  • oral surgery to extract the impacted tooth and insert with wires an arch bar to maintain the space and stabilize other teeth
  • alveolar atrophy – shrunken tissue in the area of the missing teeth
  • future surgery needed – two implants with bone and soft tissue connective grafting and implant restoration with crowns
  • implant revision surgery required after Arrin stops growing and again each 20 years thereafter
  • eight fittings for dentures, each requiring three office visits, up to the time of trial
  • one hour per day maintenance of dentures including extensive cleaning, adhesive placement and securing the dentures in Arrin’s mouth as well as a similar removal process at the end of each day

 Inside Information:

  • Under federal law, 20 USC Section 1414, an individualized education program (“IEP”) is required to define the individualized objectives of disabled schoolchildren. Arrin had frequent tantrums, was easily distracted and was severely impaired in expressive language. His IEP provided for (and the school provided) a staffing ratio of one teacher and one paraprofessional for each six children in his class.
  • The teacher and paraprofessional defendants did not appear at trial and in the judge’s charge the jurors were told they may, therefore, conclude that such testimony would not have supported the defense positions and accordingly draw the strongest negative inferences. Defense counsel  explained their absence stating that they were no longer employed by the city with one in Florida and the other’s location unknown. The jury apparently drew an unfavorable inference from their absence.
  • The jury also awarded $100,000 for future medical expenses, an amount that the trial judge and the appellate court determined should be reduced to $50,000.

 

On December 20, 2001, at about 8:30 a.m., David Reynolds was driving on Ridge Road in Wolcott, New York when he was pulled over and arrested by a New York State trooper for driving without a valid license.

An altercation ensued (there was a 10 year old history of hostility between Reynolds and the trooper)  and the trooper repeatedly banged Mr. Reynolds’ head  against the car’s trunk while Reynolds was handcuffed. He was then released after the trooper discovered that Reynolds had a temporary license in his wallet.

Mr. Reynolds, then 37 years old, drove himself to the local hospital where he complained of head and neck pain. Here is what Mr. Reynolds looked like in a photo taken the day after the incident:

Reynolds filed a lawsuit against New York State claiming that the trooper had no reasonable cause to arrest him and that his injuries were caused by the trooper’s use of excessive force.

After a bench trial, Court of Claims judge Nicholas V. Midey, Jr. issued a decision on liability in claimant’s favor dated December 23, 2009  and directed that a new trial to be held on the issue of damages only.

On May 14, 2012, following the the damages trial, the judge awarded damages in the sum of $1,017,500 as follows:

  • $225,000 past pain and suffering – 10 years,
  • $475,000 future pain and suffering – 30 years
  • $17,500 past medical expenses
  •  $300,000 future medical expenses

Now, on appeal, the damages decision has been affirmed in Reynolds v. State of New York (4th Dept. 2014).

As set forth in the appellate court decision, claimant sustained three cervical herniated discs and a closed head injury. Here are additional injury details:

  • presented at hospital on the night of the incident with a swollen, bloody and blackened left eye, a bump on his head (permanent) and complaints of head and neck pain for which he was given a neck brace and pain medication
  • continuing headaches and head pain with memory problems, dizziness, nightmares and stuttering
  • continuing neck pain with radiculopathy and diminished range of motion due to herniated discs at C4-5, C5-6 and C6-7
  • continuing need for narcotic pain medication
  • unable to hunt, play sports, drive a car, clean house or cook

His doctors recommended that Reynolds undergo two separate cervical fusion surgeries but opined that even with successful surgery he will always have cervical pain and related numbness (though surgery would alleviate some of that), he will not regain full range of motion and he will have permanent lifting restrictions.

Inside Information:

  • Reynolds made no claim for lost earnings as he had  injured his knee in 1984 in a potato harvester accident and had been on disability ever since.
  • The State argued that Reynolds failed to mitigate his injuries by ignoring medical advice (as to cervical fusion surgery) and engaging in post-injury manual labor (riding a mower for a few months in 2003 and shoveling roofs and driveways in 2005 and 2006).
  • Reynolds claimed lumbar herniations requiring surgery were casually connected but neither the trial judge nor the appellate court agreed, in part because he did not complain of back pain for two years after the assault.
  • At the time of trial, Reynolds was self-medicating by smoking marijuana instead of taking prescribed narcotic medications such as Vicodin that he said were no longer effective.

 

On April 20, 2004, Caridad Cuevas underwent surgical removal of a stone from her salivary gland. Afterwards, she was left with a severe temporomandibular joint (TMJ) injury.

Ms. Cuevas, a 21 year old medical assistant, contended that her TMJ injury was the result of her jaw being hyperextended by the anesthesiologist when administering general anesthesia via endotracheal intubation:

Ms. Cuevas brought a successful lawsuit against the doctor and the hospital and a Manhattan jury awarded pain and suffering damages in the sum of $1,250,000 ($250,000 past – six years; $1,000,000 future – 55 years).

The defense successfully argued that the award was excessive and the trial judge agreed that the award should be reduced to $750,000 ($250,000 past, $500,000 future).

The hospital appealed both the liability verdict and the damages award, even as reduced. Now, in Cuevas v. St. Luke’s Roosevelt Hosp. Ctr. (1st Dept. 2012), the appellate court has affirmed on all counts and the pain and suffering award stands at $750,000.

 As set forth in the appellate court decision, due to the TMJ injury Ms. Cuevas had to wear a mouth guard at all times (causing a lisp) and she could not:

  • open her mouth more than 15 milliliters without pain
  • eat without pain or cutting her food into very small pieces
  • kiss her husband normally

What was not mentioned in the decision is the fact that plaintiff suffered from pre-existing multiple sclerosis (an autoimmune disease that affects the brain and spinal cord) and as a result she was not a candidate for any surgery to correct her TMJ injury and could not take anti-inflammatory medication.

 Inside Information:

  • The loss of consortium and services verdict for plaintiff’s husband in the sum of $250,000 ($50,000 past, $200,000 future) was reduced to $150,000 (50,000 past, $100,000 future). This aspect of the verdict included consideration of the fact that the married couple could not kiss normally.
  • The defense contended that plaintiff’s multiple sclerosis showed a pre-disposition for a TMJ injury.
  • The hospital had sought summary judgment dismissing the complaint before trial claiming that it could not be held liable for the negligence of an anesthesiologist who was an independent contractor not employed by the hospital. The motion was denied.

In 2009, a Bronx County jury awarded a 16 year old girl $2,750,000 for crush injuries to her face after a fellow student hit her with a bat during softball practice at Walton High School (shown below).

Now, in Navarro v. City of New York (1st. Dept. 2011), the entire suit has been tossed out. The appellate court held that the risk of being hit by a practice swing of a bat was assumed by plaintiff, an experienced softball player who admittedly knew the risks inherent in the sport.

We discussed this case shortly after the trial, here, and predicted that the case would be dismissed on appeal.

The city had also sought a reduction of the $2,750,000 pain and suffering award but that issue was rendered moot by the liability reversal. The parties did, though, brief the damages issue (since the court could have affirmed the liability award and then would have had to address the amount of damages).

Plaintiff cited Storms v. Vargas (2d Dept. 1998) [$4,000,000 for 31 year old with massive facial injuries]  in support of her argument that her $2,750,000 verdict should be affirmed. In that case, though, the injuries were much more severe than those sustained by Ms. Navarro. Not only did the 31 year old police officer Stephen Storms undergo 26 surgeries for his injuries but also his left eye was surgically removed and he was left with an artificial eye.

Inside Information:

  • The jury had apportioned liability 75% to the city and 25% to the student who swung the bat and they found that plaintiff had not been comparatively negligent.
  • The accident happened in June, plaintiff returned to school in September and she resumed playing softball two months later

On August 13, 2006, George Nunez was working as part of a New York City Transit Authority crew replacing subway tracks in Brooklyn. A walkway suddenly collapsed and he fell 30 feet to the street below, causing him to sustain numerous life-altering injuries.

 

Nunez, 48 years old at the time of the accident, sued the City of New York and was granted summary judgment under New York’s Labor Law Section 240 which protects workers from height-related accidents.

In a damages only trial, the jury awarded Mr. Nunez $9,200,000 for his pain and suffering ($3,000,000 past, $6,200,000 future). The trial judge conditionally reduced the award to $5,500,000 ($1,750,00 past – 3 years, $3,750,000 future – 37 years) and that reduced sum has now been affirmed by the appellate court in Nunez v. City of New York (2d Dept. 2011).

Unfortunately, the appellate court failed to explain why the jury’s verdict should be reduced (other than its reference to the boilerplate language from CPLR 5501 that the figure set by the trial judge "did not deviate from what would be reasonable compensation"). Additionally, the court did not reveal any of the injuries sustained by Mr. Nunez.

We have uncovered the details as to Mr. Nunez’s massive injuries, including:

  • Traumatic brain injury (TBI), with loss of consciousness, hemorrhage to his frontal lobe, hygromas and a temporal bone fracture
  • Bilateral wrist fractures – each with dislocation of the scaphoid lunates requiring open reduction internal fixation surgeries that failed, hardware removal and fusion surgery (arthrodesis) with dorsal plates (illustrated here) and more surgery planned
  • Pelvic fractures (six) – bilateral inferior pubic rami and superior ramus on one side
  • Facial fractures – orbit, cheek and mandible, requiring surgery to place metal plates on the side of his face

 

After two and a half months at Bellevue Hospital, Mr. Nunez was discharged in a wheelchair and transferred to a rehabilitation center where he was treated for an additional month.

Almost three years after the accident, Mr. Nunez testified that he mainly just sat home watching television and was in constant pain at all of his fracture sites.  His wife testified that since the accident he was mentally slow, often distracted and suffered panic attacks. While he regained the ability to walk, she noted that her husband could not do many everyday tasks such as buttoning his shirt, opening a can or playing with their young children.

As to the brain injuries, there was testimony from plaintiff’s expert neuropsychologist, Marcia Knight, Ph.D., who examined Nunez over a two day period one year after the accident. She concluded that he was left with a significant neurocognitive disorder involving problems with attention and processing speed, and disturbance of executive functioning in terms of planning and higher thinking. She also diagnosed Mr. Nunez with residual post-concussive disorder (causing problems with sleep, headaches, anxiety and depression). Finally, she noted asthenia (significant personality changes and lack of energy).

Defense expert William Head, M.D. a psychiatrist and neurologist, examined plaintiff and his medical records and concluded that Mr. Nunez had no brain injury, or any neurological or psychological impairments, and that his neurological status did not prevent him from being gainfully employed.

As to the wrist and other orthopedic injuries, plaintiff’s orthopedic expert Eric Crone, M.D., opined that Mr. Nunez is permanently disabled. He explained that the wrist fusion surgeries left plaintiff without any motion at all in his wrists, bilateral wrist pain and contractures in his fingers. Dr. Crone also noted that the pelvic fractures left Nunez with progressive and permanent pain there and in his back.

Defendant’s expert hand surgeon, Martin Posner, M.D., testified that as a result of the wrist fusions plaintiff should no longer have pain in his wrists and that after surgery known as a capsulectomy (to release his ligaments), plaintiff should be able to flex his fingers to a much greater degree improving his ability to grasp things.

Inside Information:

  • Plaintiff’s attorney asked the jury to award $5,000,000 for future pain and suffering; instead they went further, awarding $6,000,000 for the future.
  • Plaintiff never sought psychiatric or psychological therapy; nor was he given a prescription for antidepressants or anti-anxiety medication.
  • In reducing the loss of services award to Mrs. Nunez (from $1,500,000 to $350,000), the appellate judges cited no authoritative cases; however, they apparently rejected the applicability of two recent cases cited by plaintiff – Bissell v. Town of Amherst (4th Dept. 2008) [$1,00,000 for loss of services where spouse was paralyzed] and Villaseca v. City of New York (1st Dept. 2008) [$750,000 for loss of services where husband lost an eye].

 

Ricky Love used to hang out at a Brooklyn nightclub known as Rockwell’s and went there with friends at 2 a.m. on January 29, 2006.  I doubt he’ll be returning. He ended up in an altercation and sustained a fractured jaw.

Here’s Rockwell’s, where it all began:

At Rockwell’s, Ricky and a friend went to smoke a cigarette in an outside alleyway when he got into an argument with another customer about a spilled drink. A bouncer interceded and ejected Love from the premises.

Love claimed that the bouncer, without any provocation, repeatedly struck him in the face and banged his head against the wall causing his jaw to fracture.

Ricky sued Rockwell’s and in 2009 a Kings County jury awarded him $250,000 for his three years of pain and suffering (he made no claim for future damages).

Now, in Love v. Rockwell’s International Enterprises, LLC, (2d Dept. 2011), the appellate court has ordered a reduction of the pain and suffering verdict to $175,000.

We usually mean the mandible when referring to the jaw. It’s U-shaped and stretches from ear to ear and is joined to the upper part of the head by two temporo-mandibular joints:

The bouncer was never identified and did not testify. In fact, the defendant argued on appeal that the case should have been dismissed because all of its bouncers were independent contractors – not employees – and plaintiff could only prevail against the club itself if he could prove the bouncer was an employee. This issue, though, was not raised at or before trial so the appellate court ruled it was waived.

In reducing plaintiff’s jury verdict by $75,000, the appellate judges mentioned that this is a jaw fracture case but that’s all they said as to the injury details:

  • displaced mandible fracture requiring ORIF surgery to implant a metal plate and screws
  • four day hospital admission
  • jaw wired shut for six weeks
  • at time of trial, jaw still numb and sensitive to hot and cold, and plaintiff had difficulty eating

There’s no explanation of why the judges reduced Mr. Love’s jury award but there is a citation to one case that is relevant. In that case,  Atkinson v. Buch (1st Dept. 2005), a dentist mistakenly fractured his patient’s jaw during a tooth extraction procedure. He wired it shut immediately (while the patient was still under local anesthesia) but for the ensuing wight weeks Atkinson was in pain, didn’t work and could only eat through a straw. The jury awarded $15,000 for pain and suffering ($10,000 past – 3 1/2 years, $5,000 future – 1 year); however, the appellate court increased the award to $80,000 ($75,000 past, $5,000 future).

Here are two other jaw fracture appellate cases that rule on pain and suffering damages:

  • Barnes v. Paulin (2d Dept. 2010) – $200,000 ($100,000 past – 3 years, $100,000 future – 25 years) for a 19 year old in a car crash who sustained a mandible fracture and a nerve injury, underwent surgery to implant a plate and screws and whose jaw was wired shut for seven weeks. We discussed this case in detail, here.
  • Kennedy v. City of Yonkers (2d Dept. 1999) – $100,000 reduced from $190,000 (all past – 3 years) for a 15 year old boy with a double mandible fracture whose jaw was wired shut for seven weeks and who at trial still had popping and clicking in his jaw.

Inside Information:

  • Counsel for Rockwell’s argued in summation that the incident never happened and implored the jurors that even if they found his client liable then plaintiff’s injuries were so minimal that there should be no award at all for any pain and suffering.
  • Counsel for Love asked the jury to award $300,000 all for past pain and suffering  (conceding that his client hadn’t complained about pain since the surgery).
  • The evening began at a private party at an apartment around 10:30 p.m. where Love admitted he "probably took an [ecstasy] pill." He arrived at Rockwell’s around 2 a.m., got a drink, went to the bathroom and then for a smoke in the alley where he claimed the bouncer broke his jaw.

 

 

In almost every personal injury lawsuit, plaintiffs call their treating doctors to the stand to testify about their injuries. Doctors are asked whether the injuries plaintiff claims were caused by the accident and whether and to what extent plaintiff will in the future continue to suffer pain and disabilities. Without such testimony – especially as to the future – it’s generally thought that plaintiffs cannot prove their pain and suffering damages claims.

Here is a physician showing a jury the anatomy of the skull and the mechanics of a gunshot injury:

In a recent case involving a fractured jaw, there was no medical testimony at all but, over defendant’s objection, the trial judge allowed the jury to consider both plaintiff’s past and future pain and suffering claims.

The jury returned an award for both and the defendant appealed. Now, in Barnes v. Paulin the appellate court has ruled that there was no need for medical testimony to support the plaintiff’s claims.

Here are the common fractures of the jaw:

On December 27, 2005, then 19 year old David Barnes was a front seat passenger in Ricardo Paulin’s car when the driver lost control as he rounded a curve on the ice covered road in Hyde Park, New York. The vehicle left the road, struck a rock wall and spun 180 degrees before coming to rest. In the collision, David’s face hit the dashboard resulting in a fractured jaw.

In the ensuing lawsuit, plaintiff’s motion for summary judgment on liability was granted and the matter proceeded to trial solely on the issue of damages.

The trial judge in Barnes v. Paulin instructed the Dutchess County jury, according to Pattern Jury Instruction 2:281, that they could award future (and past) pain and suffering damages based on the number of years they concluded plaintiff would continue to have accident related pain, suffering or disability. The jury then assessed damages for David Barnes at $200,000 ($100,000 past – 3 years, $100,000 future – 25 years).

While there was no medical testimony from either side (and the defense waived its right before trial to have plaintiff examined by a doctor of its choice), plaintiff’s testimony, together with his hospital and radiology records, established the following injuries:

  • a ramus fracture to the left mandible (a fractured jaw)
  • impacted wisdom tooth on the right mandible requiring extraction
  • alveolar nerve injury
  • jaw was wired shut for seven weeks
  • surgery to implant a titanium metal plate and six screws

Here is what it looked like when plaintiff’s jaw was wired shut for seven weeks:

Additionally, David testified as to the accident trauma, the pain he suffered, his grueling surgery, his constant awareness of the metal implanted permanently in his jaw and the pain and irritation he experiences pain when he eats cold food and goes outside in the cold.

Barnes v. Paulin should not be viewed as breaking any new ground insofar as the requirement for medical testimony in pain and suffering cases is concerned. Generally, testimony from doctors will be required – especially so to establish the basis for a jury to consider a future pain and suffering claim – and plaintiffs will nearly always have one or more doctors ready to testify. Here, the jury was allowed to consider future damages in view of the permanence of the metal plate in plaintiff’s jaw and the limited testimony about pain and irritation from cold food and weather. Speculating as to much more in terms of future pain and suffering would likely have required medical expert testimony and counsel in any more significant case will undoubtedly be guided accordingly.

Inside Information:

  • Plaintiff’s $200,000 verdict was reduced by one-half to $100,000 for his comparative negligence in admittedly failing to use a seat belt as required by Vehicle and Traffic Law Section 1229-c.
  • The jury’s future pain and suffering award was for 25 years, not plaintiff’s 52 year life expectancy. Figures from the relevant statistical life expectancy table are usually provided to the jury but they are not binding and jurors are free to estimate on their own the number of years in the future that plaintiff is expected to suffer accident related pain and disabilities.