On December 9, 2011 Juan Munoz was working for a construction company at 241 Fifth Avenue in Manhattan when he fell through the partially demolished fourth floor to the third floor  sustaining injuries to his knee, hip and wrist.

241 Fifth Avenue

In his ensuing lawsuit against the building’s owner and general contractor, Mr. Munoz was granted summary judgment on the issue of liability pursuant to Labor Law Section 240(1) and the matter proceeded to a trial on damages only. The Queens County jury awarded plaintiff pain and suffering damages in the sum of $709,000 ($80,000 past – four years, $629,000 future – 50 years).

Both parties appealed. Defendants argued that (a) the case should be dismissed in its entirety because plaintiff was a recalcitrant worker whose own conduct was the sole proximate cause of his accident and injuries and  (b) the future damages award was excessive. Plaintiff countered that (a) summary judgment on liability was appropriate and (b) the future damages award was inadequate.

In Munzon v. Victor at Fifth, LLC (2d Dept. 2018), the judgments have been affirmed.

Here are the injury details:

  • Left Knee: fracture of the medial tibial plateau, torn ligaments, severely torn meniscus
  • Left Hip: diffuse posterior labral tear
  • Left Wrist: partially torn small ligaments (requiring a brace for seven months) – pain resolved within two years

On March 16, 2012 plaintiff underwent left knee arthroscopic surgery to reconstruct his anterior cruciate ligament with a patella tendon autograft, as well as a meniscectomy and chondroplasty.

Plaintiff attended physical therapy three times a week for 11 months but, on February 8, 2013 he underwent a  second arthroscopic surgery which involved debridement of damaged tissue (followed by eight more months of physical therapy). He ambulated only with a brace or cane for about two years when he finally returned to work.

At trial in February 2016, plaintiff claimed he still had intermittent hip pain but his knee caused him daily pain and required occasional use of a cane. His treating orthopedic surgeon testified that Mr. Munoz, then 30 years old, had developed osteoarthritis in his knee and would by the age of 40 require total knee replacement surgery.

Plaintiff did not require surgery for either his hip or wrist injuries and his physical therapy focused almost entirely on his knee injury. The defendants argued that in view of the paucity of treatment regarding plaintiff’s hip and wrist, a good recovery from his knee injury, plaintiff’s return to work, the lack of objective medical proof of osteoarthritis and pre-existing repetitive stress from construction work, the award for future pain and suffering was excessive.

Plaintiff argued that the future damages award was inadequate in view of his need for total knee replacement surgery, continuing pain and inability to engage in many activities he had previously enjoyed such as exercising, playing soccer and taking long walks.

Inside Information:

  • Plaintiff’s pre-verdict settlement demand was $1,000,000 against an offer of $200,000.
  • The jury returned its verdict in one hour.

 

On May 26, 2010, Anthony Rivera was driving his car on Long Ridge Road in Pound Ridge when another car made a left turn and crashed into him. Mr. Rivera, then 30 years old,  sustained significant hip and knee injuries.

Mr. Rivera sued the driver and owner of the other vehicle and was awarded summary judgment of liability. The case then proceeded to a trial to determine the amount of damages.

The Westchester jury awarded plaintiff pain and suffering damages in the sum of $1,300,000 ($300,000 past – five years, $1,000,000 future – 40 years). He was also awarded damages for medical expenses ($170,000 past, $240,000 future) and loss of earnings ($75,000 – past). The awards have been affirmed in Rivera v. Kolsky (2d Dept. 2018).

Here are the injury details:

  • Intra-articular comminuted fracture dislocation of left hip (posterior wall acetabular fracture plus osteochondral femoral fracture) requiring two days of skeletal traction with the insertion of a distal femoral traction pin and then removal of the pin, open reduction internal fixation of the acetabular fracture with a bone graft harvest, screws and a nine-hole plate and open treatment of the femoral fracture
  • Three week emergent hospital admission followed by five week admission to nursing home for rehabilitation
  • Continuing pain and limited range of motion in hip and post-traumatic arthritis requiring hip replacement surgery within four years
  • Left knee torn meniscus requiring total knee replacement surgery within three to five years

 

A Post-Op X-Ray Similar to Plaintiff’s

Before the accident, plaintiff had been working at Home Depot earning about $25,000 a year. He was out of work for three years after the accident when he returned to Home Depot in the kitchen design department. There was no claim for future loss of earnings.

The defendants’ theme at trial was that plaintiff exaggerated his injuries. They conceded he sustained a significant hip injury with residuals but argued that “he’s driving, he’s going to work, he’s not using a cane … he does everything everybody else does” and he deserves no compensation for his alleged knee and pre-existing back injuries. The verdict sheet contained a specific question as to  whether the accident was a substantial factor in bringing about the injury to plaintiff’s back and they answered “no.” As to the knee, an MRI shortly after the accident disclosed a torn meniscus but two years later, another MRI was taken and plaintiff’s treating doctor then opined there was no meniscal tear and he elected not to perform an arthroscopy. Plaintiff’s medical expert at trial disagreed. The defense position was that there was no tear and any knee pain plaintiff was experiencing was due to his morbid obesity.

Inside Information:

  • Defendants opposed plaintiff’s pre-trial motion for summary judgment as to liability claiming that (a) winding, blind curves at the accident location caused the defendant driver to be unable to see the plaintiff’s vehicle and (b) plaintiff may have been speeding. These arguments were rejected and plaintiff’s motion was granted.
  • After plaintiff and his medical expert testified, the defendants rested without calling any witnesses.
  • In his summation, plaintiff’s attorney suggested $6,000,000 for pain and suffering damages; defense counsel simply stated that the jury should award what is reasonable or adequate (for the hip only), adding “He’ll probably blow it on something anyway, but at least give him what he’s entitled to for the hip.”
  • Plaintiff’s pre-trial settlement demand was $1,000,000 against an offer of $350,000.
  • This case was hard fought by one of New York’s most highly regarded plaintiff personal injury lawyers, Michael Ronemus and a worthy counterpart from the defense side, Robert Ondrovic.

On April 2, 2012, at about 5 p.m., Apolonia Castillo boarded a city bus on 57th Avenue between 97th Place and 98th Street in Queens. After paying her fare, she fell and sustained injuries to her left knee and spine.

Ms. Castillo, then 72 years old, sued the bus company claiming that the driver caused her to fall when he pulled away from the bus stop while she was still standing at the fare box in the front of the bus, not allowing her to safely move to a seat before the accident.

Before trial, defendant moved for summary judgment claiming that (a) plaintiff was already seated when the driver accelerated away from the bus stop and (b) plaintiff’s injuries failed to meet the statutory threshold under Insurance Law Section 5102.  The motion was denied in its entirety.

The Queens County jury agreed that the driver was fully at fault. In the immediately ensuing second phase of the trial, the jury found that plaintiff sustained both a significant limitation of use of a body function or system and a permanent consequential limitation of use of a body organ or member and they awarded plaintiff pain and suffering damages in the sum of $1,500,000 ($500,000 past – three years, $1,000,000 future – 10 years). Both the liability and damages verdicts have been affirmed on appeal in Castillo v. MTA Bus Co. (2d Dept. 2018).

Here are the injury details:

  • Left Knee – torn lateral and medial menisci requiring arthroscopic surgery (menisectomies, chondroplasty of the trochlear groove, lysis of adhesions and synovectomy) with continued difficulty walking (unable to tolerate more than one block due to pain)
  • Cervical Spine – disc bulges at C2-3 through C7-T1 with diminished range of motion
  • Lumbar Spine – disc bulges at L3-4 and L5-S1 with radiculopathy causing weakness and loss of sensation in left leg
  • Post-Concussive Syndrome

Six months before the accident,  plaintiff reported to her primary care physician that she had knee pain and she was referred for an orthopedic evaluation (which did not occur).  There were no further complaints of knee pain in the records of subsequent pre-accident visits to her physician and plaintiff testified that before the accident she had only mild knee discomfort on an infrequent basis. Plaintiff’s orthopedic surgeon opined that (a) her mild symptoms prior to the accident were greatly and severely worsened due to and following the accident and (b) she is at great risk for progressive breakdown of her knee’s remaining articular cartilage and will ultimately require a total knee replacement.

Inside Information:

  • Prior to the accident, plaintiff had intermittent neck pain for many years due to a motor vehicle accident when she was 35 years old.
  • Plaintiff’s pre-trial settlement demand was $750,000; there was no offer.

On February 21, 2011, Juan Quijano was crossing 32nd Street at Sixth Avenue in Manhattan when he was struck and knocked to the ground by a taxi whose driver was making a left turn.

32nd Street at Sixth Avenue

In the ensuing lawsuit, a Kings County jury found the driver fully at fault and the matter then proceeded to a trial on damages. Mr. Quijano, then 31 years old, was awarded $800,000 for his pain and suffering ($300,000 past – three and a half years, $500,000 future – 40 years). In Quijano v. American Transit Insurance Co. (2d Dept. 2017), the appellate court affirmed the judgment, rejecting defendants’ contention that the award was excessive.

As indicated in the court’s decision, plaintiff sustained shoulder, knee and spinal injuries. He was taken from the scene by ambulance to the local hospital  complaining of pain in those areas. Here are the injury details:

  • Shoulder: torn labrum of the rotator cuff with impingement syndrome requiring arthroscopic surgery in 2012 and leaving plaintiff with permanently damaged cartilage, significantly reduced range of motion and muscle power and at high risk for developing traumatic arthritis, adhesive capsulitis and scar tissue
  • Knee: medial meniscal tear and tilting of the patella leaving plaintiff with permanently damaged cartilage and requiting future surgery
  • Back – partial tear/bulge of the L4-5 disc with radiculopathy at the L5 nerve root (confirmed by EMG nerve test) requiring epidural injections and leaving plaintiff in constant pain
  • Neck – C5-C6 radiculopathy affecting biceps

Plaintiff claimed at trial that his pain was so acute that he had been for years and to the present taking 3-4 Vicodin pills per day 3-4 days a week. Furthermore, he alleged he still had difficulties with lifting heavy items, running with his child and playing soccer.

In addition to the award for pain and suffering, the jury also awarded, and the appellate court affirmed,  damages for future medical expenses in the sum of $800,000 (40 years). Plaintiff’s rehabilitation medicine physician testified that required medical expenses over Mr. Quijano’s lifetime will cost about $1,590,000 (at the rate of $39,000 per year ),  including $27,000 per year for epidural injections to both his back and neck, and costs for physicians, physical therapy and diagnostic tests.

Inside Information:

  • Plaintiff’s pre-trial settlement demand was $100,000 – the limit of the applicable liability insurance policy; the offer was $40,000. The amount of the judgment in excess of the coverage might be recovered in a bad faith refusal to settle claim.
  • Plaintiff resumed work (sales and house paining) a few months after the accident and there was no earnings loss claim presented to the jury.
  • The driver stated to a police officer at the scene that plaintiff ran into the side of his taxi but the driver was precluded from testifying at trial after he failed to appear several times for his pre-trial deposition.

 

 

On November 9, 2011, Stenneth Knight, then 43 years old, was driving to work when he was stopped at a red light and his car was rear-ended on Rockaway Parkway in Brooklyn. After a trial on liability, Mr. Knight was granted a directed verdict finding the other driver fully at fault and the case proceeded to a trial on damages only.

The Kings County jury determined that plaintiff sustained both a significant limitation of use of a body function or system and a  permanent consequential limitation of of use of a body organ or member (two of the threshold categories under Insurance Law Section 5102, any one of which is required in order to recover pain and suffering damages in New York car accident cases). Plaintiff was then awarded pain and suffering damages in the sum of $80,000 (past only – three and a half years).

The jury was not permitted to award any future damages because the trial judge precluded plaintiff’s expert orthopedic surgeon from testifying as to his opinion regarding prognosis and future medical treatment.

On appeal in Knight v. Barsch (2d Dept. 2017), the trial judge’s preclusion order was ruled erroneous and it was held that the jury should have been permitted to hear plaintiff’s expert’s opinions and award damages for future pain and suffering. Accordingly, the appellate court ordered a new trial on the issue of damages for future pain and suffering.

As indicated in the decision, plaintiff sustained several bulging discs and a a meniscal tear in his right knee. Here are the injury details:

  • Right Knee – complete tear of medial meniscus
  • Cervical Spine – bulging discs at C4-5, C5-6 and C6-7
  • Lumbar Spine – large disc protrusion at L4-5 and two smaller ones at L2-3 and L5-S1

 

Plaintiff drove his car from the scene to work (he was a chef) and first received medical treatment at an emergency room two days later complaining of knee, neck, back and shoulder pain. The next day, he began a two year course of three times a week treatment with a chiropractor. He also treated with an orthopedic surgeon (for eight months),  a pain management physician (who, over the course of a year, administered a series of facet nerve block injections in plaintiff’s neck and back) and a physical therapist.

Plaintiff’s only medical witness was his expert orthopedic surgeon, Jerry Lubliner, M.D., who examined plaintiff one time, in 2014.  Plaintiff testified that he still had pain and limitations in his neck and back a few days a week but that his knee pain was even more often, was the worst and required him to use a cane several days a week. As a result, he claimed, he could no longer enjoy playing cricket,  jogging or dancing in church and he could no longer help his wife with the laundry and other activities, nor could he cook any longer without using a high chair to sit.

None of plaintiff’s injuries required surgery as of the trial date although Dr. Lubliner testified that plaintiff has significant range of motion limitations that will be a problem for the rest of his life and he would have testified that Mr. Knight has permanent pain in his knee and spine and that he  “needs operative arthroscopy of the right knee and possible meniscal repair/menisectomy.”

The defense contended that plaintiff had pre-existing degeneration in his spine and knee, his injuries did not meet the serious injury threshold and there should be no award of any damages at all.

Inside Information:

  • In her closing argument, plaintiff’s attorney asked the jury to award $150,000 for her client’s past pain and suffering.
  • Plaintiff left his job as a chef because he had to stand all of the time and it was too painful. As of trial, he was working as an aide at a skilled nursing facility (where he claimed he was allowed to sit down for half of his shift). Plaintiff missed only one or two days from work and made no claim for loss of earnings.
  • Plaintiff’s treating orthopedic surgeon, Eric Senat, M.D.,  was not called to testify. The defense claimed that in 2014 Dr. Senat was found guilty of health care fraud and that the jury should be able to see a document from a workers compensation board to that effect because before testifying Dr. Lubliner reviewed Dr. Senat’s treatment records and Dr. Senat’s credibility (and the reliability of his records) should be considered by the jury. The trial judge would not allow the document in and the appellate court, in finding the parties’ “remaining contentions” to be without merit, agreed.

On April 6, 2011, at about 9:30 p.m., Claudia Shepherd was struck and run over by a sanitation truck in the crosswalk at the intersection of Nostrand Avenue and Fulton Street in Brooklyn. The driver fled the scene but an eyewitness chased the truck and identified it to the police.

The Scene of the Accident

In the ensuing lawsuit against the driver and owner of the truck, defendants claimed their truck was not involved in the accident.  The driver admitted that the intersection was within his route that night but he denied hitting the plaintiff. The jurors found otherwise on both counts and returned a verdict of full liability against the defendants. The matter then proceeded to a trial on damages and plaintiff was awarded $3,000,000 for her pain and suffering ($1,000,000 past – four years, $2,000,000 future – 55 years).

In Shepherd v. T.I.A. of New York, Inc. (2d Dept. 2017) both the liability and damages verdicts have been affirmed.

Ms. Shepherd, then 21 years old, sustained serious knee and ankle injuries, none of which are mentioned in the court’s decision. Here are the injury details:

  • Left Knee – patella and fibular head fractures with dislocated joint, ruptured ligaments and peroneal nerve damage  requiring open reduction internal fixation surgery with the insertion of a long surgical screw and washer
  • Left Ankle -lateral malleolus and fibular fractures with compromised articular surface requiring open reduction internal fixation surgery with the insertion of a metal plate and seven screws
  • 20 day hospital admission (discharged using wheelchair after which for several months plaintiff required a long leg brace, crutches and a cane which she relied upon for eight months and still uses from time to time

  • Extensive physical therapy over five months
  • Future surgery needed to remove surgical hardware to alleviate pain
  • Post-traumatic arthritis in both the knee and ankle
  • Future ankle fusion surgery
  • Continuing pain and disabilities in knee and ankle leaving plaintiff unable to walk more than five blocks or stand for long periods or enjoy dancing or racquetball as she used to before the accident
  • Post-traumatic stress disorder (“PTSD”) – nightmares, irritability, social withdrawal and depression

The defense contended that plaintiff made a good recovery, she will not need ankle fusion surgery, over-the-counter medication could alleviate plaintiff’s pain completely and the PTSD claim was not significant (because plaintiff underwent only a few months of mental health treatment, never took any medication for PTSD and it had very little impact on her scholastic or career endeavors, or activities of daily living).

The jurors also awarded $350,000 for future medical expenses. This award was reduced on appeal to $17,800 because there was no adequate  proof of future medical costs other than $17,800 for future orthopedic surgeries. Plaintiff argued on appeal that the award should be sustained because the jury must have included about $300,000 in medical expenses for future treatment of PTSD. In his closing argument, though, plaintiff’s attorney requested only $10,800 for the hardware removal surgery.

Inside Information:

  • At the time of the accident, plaintiff was a student at York College in Queens. She withdrew from classes for the spring semester and was unable to attend summer classes. She returned to college in September of 2011 and graduated two years later with a degree in accounting. At the time of trial, she was working two jobs – at a day care center in Brooklyn and for an accountant in Queens. There was no claim for lost earnings.
  • In their closing arguments, defense counsel suggested a pain and suffering award of $150,000 while plaintiff’s counsel suggested the exact $3,000,000 awarded by the jury.
  • Defense counsel argued on appeal that the pain and suffering award should be reduced to “under $1 million.”

 

On August 16, 2006 Arnulfo Ahumada was working as a parking attendant in a parking garage at NYU Langone Medical Center at 530 First Avenue in Manhattan when he was struck by a rolling car whose driver had mistakenly left it on the ramp with its gear in neutral instead of park.

Mr. Ahumada, then a 51 year old Bronx resident, claimed significant knee and low back injuries and sued the driver of the car. At trial in August 2015, the judge rendered a directed verdict on liability against the driver and the matter then proceeded to an assessment of damages. The Bronx County jury awarded plaintiff pain and suffering damages in the sum of $750,000 ($500,000 past – nine years, $250,000 future – 10 years). The trial judge agreed with the defense that the awards were excessive and he ordered that the verdict be set aside and a new trial be held on damages. Plaintiff’s appeal followed.

In Ahumada v. Drogan (1st Dept. 2017), the appellate court agreed with the trial judge that the verdict was excessive but found that the judge should have allowed pain and suffering damages in the sum of $450,000 ($300,000 past, $150,000 future).

The decision mentions only that plaintiff’s injuries included a fractured fibula. Here are the injury details:

  • ambulance transport to hospital with complaints of bilateral knee pain and low back pain; treated and released to home with crutches and pain medication
  • admitted to hospital in the ensuing week for two days for possible blood clots in left leg
  • non-displaced left proximal fibular fracture
  • left knee torn meniscus requiring arthroscopic surgery  on 10/26/06

  • on crutches eight months, cane one month
  • out of work seven months
  • extensive physical therapy regimens both before and after surgery
  • herniated disc at L4-5
  • continuing knee and back pain
  • unable to resume bicycle riding, playing soccer, running or prolonged walking or standing

The jury heard extensive medical testimony on behalf of each side including expert orthopedic surgeons Leonard Harrison, M.D. for plaintiff and Mark I. Pitman, M.D. for defendant.

The defense  argued that the fibula fracture was insignificant (especially because it had not been diagnosed until several days later when plaintiff was examined for possible blood clots in his leg), the herniated disc was also insignificant (because there was no impingement on any nerve root) and the meniscus was merely shaved down and not repaired. Furthermore, the defense argued that plaintiff returned to work without restrictions seven months after this accident, hadn’t had any medical treatment for his knee injury for almost eight years and that a subsequent car accident (on 10/5/10) was the cause of any knee or back pain or disability that still existed as of trial and he had a pending lawsuit for that accident in which he’d be compensated for all of his injuries.

Plaintiff countered that the 2010 accident had nothing to do with his left knee or back (the injuries in the subsequent accident were to plaintiff’s neck and shoulder) and that his leg and back injuries are permanent, painful and disabling with the possibility of needing a total knee replacement some time in the future.

Inside Information:

  • The trial judge gave instructions to the jury (the jury charge) that included the issue of the subsequent accident.
  • In his summation, defense counsel suggested that the jury award damages only for past pain and suffering; plaintiff’s counsel asked for $3,000,000 equally split between past and future.
  • The defense hired an investigator who took surveillance film of plaintiff on 15 occasions and claimed that it showed plaintiff working without pain or restrictions. Plaintiff’s counsel contended the film  showed Mr. Ahumada struggling to walk, doing so slowly and with all his weight on his uninjured right leg.

 

On September 28, 2010, Susan Sermoneta was waiting for a subway train at West 181st Street in Manhattan when another passenger, David Cloud, slipped on a slimy substance on the subway platform that had oozed from a garbage can. Mr. Cloud fell onto Ms. Sermoneta who in turn fell to the ground injuring her knee.

garbage leak
Leaking from garbage bags or cans can create slippery, hazardous areas.

Ms. Sermoneta, then a 66 year old amateur street photographer, sued the transit authority claiming that it was negligent in that the slime was a recurring condition and the area was uncleaned on the day of the accident (the regular cleaning attendant failed to report to work that day). The Manhattan jury returned a verdict finding that the defendant was fully at fault for the incident and that Mr. Cloud bore no responsibility.

The jury awarded pain and suffering damages in the sum of $2,700,000 ($700,000 past – five years, $2,000,000 future – 15 years).

In Sermoneta v. New York City Transit Authority (1st Dept. 2017), the appellate court affirmed the liability finding but agreed with the defendant that the pain and suffering award was excessive and it ordered a reduction of the future damages award to $1,000,000. As a result, the damages award stands at $1,700,000.

The court’s decision mentions that plaintiff sustained a knee injury. Here are the injury details:

  • treated and released from hospital emergency room with narcotic pain medication, crutches and a knee immobilizer (which was worn for two months)
  • impaction fracture of the patella with displacement of the articular surface
  • physical therapy (13 weeks) and cortisone shots
  • post-traumatic arthritis with continuing pain and antalgic gait
  • unable to squat or move quickly
  • needs total knee replacement surgery in near future
  • major depressive disorder – aggravation of pre-existing controlled dysthemia (chronic low-level moderate depression)

kneefrac_2

Plaintiff had been a widely acclaimed and passionate amateur street photographer whose work “was at the core of her pre-accident life” and whose photographs were displayed in books and magazines. She claimed that her avocation was demolished as a result of her knee injury and disabilities which then in turn contributed to the development of her major depressive disorder. It appears the jury agreed after hearing extensive testimony not only from plaintiff but also from her treating orthopedic surgeon, mental health professionals, family members and friends.

Inside Information:

  • Plaintiff was helped to her feet at the scene of the accident and got onto a subway train to continue her trip but got off at 34th Street and called 911 for ambulance transportation to the hospital due to increasing knee pain and swelling.
  • Plaintiff’s pre-trial settlement demand was $2,500,000 against an offer of $50,000.
  • No medical experts testified for the defense although the five page three year old report of its examining orthopedic surgeon (finding no evidence of any disability) was placed in evidence by stipulation of the parties after the doctor’s appearance date in court was canceled when plaintiff’s counsel had to deliver a eulogy at the funeral of a close friend.
  • Plaintiff had posted about 65,000 photographs on Flickr, one of which received half a million views and one of which was chosen as the centerpiece for a major camera company’s advertising brochure.
  • Despite her injuries, within seven months, plaintiff was able to travel including trips to Nevada, Hawaii, Cuba, Sarajevo, Guatemala, Bali and India. She took photographs on each trip but argued they were merely “bucket list” trips, structured so she could refrain from any strenuous activity and she remained depressed and unable to experience any kind of the joy she would have but for the accident and injuries.

 

 

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.

 

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

149

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

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

Here are the injury details:

Left Knee –

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

meniscus_repair--04

Back –

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

epidural1

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

Inside Information:

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