On August 19, 2008, Dorothy Dunnigan was driving through an intersection on White Plains Road in the Bronx when her vehicle was struck by a transit authority bus. Both the 79 year old Ms. Dunnigan and her 41 year old passenger Dorothy Lemon sustained serious injuries.

bus_accident_0502

In their ensuing lawsuits, a Bronx County jury determined in April 2013 that the crash was 100% the fault of the bus driver and the jurors awarded pain and suffering damages, as follows:

  1. to the estate of Ms. Dunnigan (she died in 2011 from unrelated causes) in the sum of $2,000,000 (all past – three years) and
  2. to Ms. Lemon in the sum of $4,000,000 ($2,000,000 past – three years, $2,000,000 future – 35 years).

In Coleman v. New York City Transit Authority (1st Dept. 2015), the awards have been substantially reduced – to $1,000,000 for Ms. Dunnigan’s estate and to $3,500,000 ($1,500,000 past, $2,000,000 future) for Ms. Lemon.         

As set forth in the court’s decision, Ms. Dunnigan sustained head and other injuries while Ms. Lemon sustained femur, knee and other injuries.

Here are the injury details:

Dunnigan: At the hospital immediately following the accident, she complained of headaches and overall body pain. A CT scan disclosed a subdural hematoma which required surgical evacuation with burr holes drilled into her skull. Following her craniotomy, Ms. Dunnigan remained hospitalized for five weeks and then she was admitted for one month to a rehabilitation facility. Although she drove a car and never required ambulatory assistance before the accident, she could no longer drive thereafter and required a rolling walker to get around. In addition, she had continuing shoulder, neck and knee pain, left side weakness, poor balance and forgetfulness all of which, plaintiff’s expert neurologist testified. were the result of her traumatic brain injury. She was essentially confined to her home until she died.

subdural hematomathu_jpg

Lemon:  A comminuted right femur fracture required open reduction internal fixation surgery with the insertion of an intramedullary rod and screws and a one month hospitalization. Upon discharge, she required visiting nurse assistance and inpatient rehabilitation. She never returned to work as a home health aide and required a cane to walk. About four years after the accident, Ms. Lemon underwent arthroscopic surgery on her right knee to repair a torn meniscus that her doctor opined was due to increased stress because of the femur fracture. She also suffered from back pain and unremitting headaches and dizzy spells 2-3 times a week and was diagnosed with depression for which she was medicated and undergoing psychiatric care.

nailing
Femur Fracture Nailing

The jury also awarded lost earnings damages to Ms. Lemon in the sum of $6,000,000 ($1,000,000 past – five years, $5,000,000 future – 35 years) but those amounts were slashed to $825,000 by the trial judge and further reduced by the appellate court to $617,000 ($97,000 past, $520,000 future – 25 years). The trial judge’s reduction was based upon plaintiff’s annualized last year’s wages as a part-time home health aide ($20,800) and the appellate court’s additional reduction was because there was no evidentiary basis to conclude Ms. Lemon would work the remainder of her life expectancy.

Inside Information:

  • During a recess between the close of evidence and summations, one of the jurors told the judge that Ms. Lemon approached her and said something to the effect of “vote for me.” The defendants moved for a mistrial arguing that their case was prejudiced. After extensive inquiry by the judge, the application for a mistrial was denied.
  • In their summations, the attorney for Ms. Dunnigan’s estate asked the jury to award $1,000,000 for her pain and suffering while the attorney for Ms. Lemon asked for $6,000,000.
  • Before the accident, Ms. Lemon was working as a home health aide for Ms. Dunnigan 20 hours a week helping her with matters such as shopping and laundry due to Ms. Dunnigan’s pre-existing cardiac and arthritis issues. Otherwise, Ms. Dunnigan had been in relatively good health.

On June 12, 2009, 32 year old Jason Kowalsky was a field technician for Verizon standing at the back of his parked van when he was hit by a pick-up truck owned by the County of Suffolk.

Verizin van

In his ensuing lawsuit, Kowalsky’s motion for summary judgment as to liability was granted and in August 2014 the case proceeded to a damages only trial.

Plaintiff was awarded pain and suffering damages in the sum of $1,050,000 ( $200,000 past – five years, $850,000 future -41 years). The trial judge ordered a reduction of the future damages award to $200,000. On appeal, in Kowalsky v. County of Suffolk (2d Dept. 2016), the entire pain and suffering award has been reinstated.

As set forth in the court’s decisions, plaintiff sustained a back injury that required surgery. Here are the injury details.

  • emergency transport to local hospital with severe overall body pain and knee placed in immobilizer; discharged to home by ambulance but returned to the hospital same day and two days later complaining of leg pain
  • right knee arthroscopic meniscal repair surgery on 12/2/09; partially torn anterior cruciate ligament and chondromalacia observed
  • knee brace for one month, crutches for three months
  • low back pain radiating to lower extremities due to annular tear at L4-5 requiring physical, injection and medication therapies and on 6/3/12 lumbar laminectomy surgery and a spinal fusion at L4-5 with screws, rod and a bone graft
  • at the time of trial, plaintiff had limited range of motion in his spine, chronic pain syndrome, was unable to lift or bend and the side effects of extensive continuing opioid pain medications (he was taking Oxycodone, Methadone, Flexeril, Ibuprofen and Ambien) left him sluggish, groggy, cognitively impaired, with extremely limited daily activities and unable to return to any work at all
  • all injuries were deemed permanent and plaintiff’s prognosis was poor for control of his chronic pain

annular tears 2

The jury also awarded economic damages in the sum of $4,038,000 ($2,625,000 for lost earnings and $1,413,000 for lost benefits). The trial judge ordered substantial reductions of all future economic (and future pain and suffering) losses but the appellate court reinstated them all. The jury award for past lost wages was at the rate of $75,000 per year which was about what plaintiff had earned in a recent year; future lost earnings (over a 24 year period) were based upon increases plaintiff claimed he would have enjoyed over the years. The defendants’ main argument as to the lost earnings awards was that plaintiff could perform some form of sedentary work, according to their experts. As the court noted, though, the jury was free to adopt the opinions of plaintiff’s expert physicians who opined that he could not return to any form of work, sedentary or otherwise (mainly due to the debilitating effects of continuing narcotic pain medications).

Inside Information:

  • Defendants raised on appeal an allegation that a year before trial plaintiff pled guilty to felonious grand theft and that any claims of accident related inability to work are extremely suspect. Plaintiff argued that this claim was not raised at trial and should therefore not be considered by the appellate court. It was not mentioned in the decisions.

On May 20, 2006 at about 3 a.m., a five-car pile-up occurred on the West Side Highway near 79th Street in Manhattan. Initially, a taxi was rear-ended and caused to strike the car in front of him. While those three cars were disabled in the roadway, James Gregware, coming over a blind hill in the road, rear-ended the car that had rear-ended the taxi. Uninjured, Mr. Gregware got out of his car to exchange insurance information and he was then struck and knocked to the ground by another driver who rear-ended his vehicle.

Another 5 car pile-up

Mr. Gregware, then a 41 year old self-employed film editor, sustained extensive injuries and sued the driver who rear-ended his car, Burtis Construction Company and the City of New York.

At the time, Burtis was performing road work in the area pursuant to a contract with the City. Plaintiff claimed that Burtis and the City were negligent in setting up unsafe lane closures (two of the three lane were closed down) without required warning signs or tapered and staggered lighted-barrels and that as a result drivers were forced to suddenly – and without warning – merge to the right lane causing the accidents that night.

The Manhattan jurors agreed with the plaintiff and on April 15, 2013, after 17 days of trial and five days of deliberations, they were charged by the judge as to the law and then ruled that the City was 65% at fault for the crash and Burtis 35% at fault. They exonerated the driver who struck plaintiff’s car.

The jurors awarded plaintiff pain and suffering damages in the sum of $6,000,000 ($2,200,000 past – seven years, $3,800,000 future – 29 years). They also awarded plaintiff’s wife loss of services and consortium damages in the sum of $1,125,000 ($700,000 past – seven years, $425,000 future – 29 years).

In Gregware v. City of New York (1st Dept. 2015),  the liability and damages verdicts were affirmed but the appellate court found that the jury’s apportionment of 65% of the liability to the City was against the weight of the evidence, in light of the fact that Burtis was responsible for setting up and maintaining the traffic pattern that caused the accident. The case was, therefore, remanded for a new trial on the issue of the apportionment of liability between the City and Burtis.

During the new trial held last week in New York Supreme Court, the parties settled the case for $8,500,000 ($2,000,000 or 23.5% by the City and $6,500,000 or 76.5% by Burtis). The settlement was $1,375,000 more than the total $7,125,000 verdict because of the accrual of about three years of interest.

As indicated in the court’s decision, plaintiff sustained severe and debilitating injuries to his legs, knees, pelvis, shoulder and ribs. Here are the injury details:

  • Right Knee – complete disruption of the anterior cruciate ligament (ACL), medial collateral ligament (MCL), medial patellar retinaculum and part of the quadriceps muscle, comminuted fibular head fracture, partial tear of the vastus lateralis muscle with avulsion fracture of the tibial spine, and a partial tear of the posterior cruciate ligament (PCL)
  • Left Knee – large comminuted avulsion fracture of the lateral tibial plateau, a comminuted fracture of the fibular head with an avulsed lateral collateral ligament, and a torn ACL
  • Pelvis – comminuted fracture deformity involving the right superior pubic ramus
  • Ribs – fractures to ninth and tenth ribs
  • Shoulder – torn right labrum

knee joint ligaments

Mr. Gregware was admitted to the trauma unit of a local hospital for 18 days and then transferred to a nursing facility for inpatient rehabilitation for an additional nine weeks. Upon discharge from the nursing home on August 12, 2006,  Mr. Gregware began outpatient physical therapy attending three hour sessions three days a week for five months (and again intermittently after the  additional surgeries described below).

His injuries required five surgical procedures:

  • On May 31, 2006 – (1) repairs of left knee avulsed tibial lateral plateau fragment with pins and screws and the avulsed lateral collateral ligament with drilled holes, sutures and anchors and (2) right knee ruptured quadriceps tendon sutured, posterior medial corner repaired and MCL repaired with screw
  • On January 22, 2007 – left knee lateral meniscus debridement and chondroplasty and removal of protruding screw
  • On February 5, 2009 – extensive and complex right knee ACL and MCL reconstructions with drilling to insert tendons from cadavers with screws and staples
  • On May 23, 2011 – left knee ACL repair (similar to the right knee repair) and meniscectomy

acl-reconstruction-3

During the 11 days before his initial surgeries, Mr. Gregware was completely bedridden, catheterized, and in tremendous pain despite medication. Then, his legs were casted from his buttocks to his toes for more than a month. After the casts were removed, he was fitted with Bledsoe braces (metal braces with multiple buckles and straps that restrict the legs from bending) which he wore for about two months (and then again intermittently after his additional surgeries).

Plaintiff’s treating orthopedic surgeon, Elliot Hershman, M.D., testified that Mr. Gregware is already suffering from osteoarthritis and that he will require four total knee replacement surgeries during the course of his life (two on each knee) with pain in his knees for the rest of his life.

Inside Information:

  • Plaintiff also sued the drivers of the vehicles involved in the initial collisions. Their motions for summary judgment of dismissal were granted and affirmed on appeal.
  • The defendants’ three expert physicians conducted five separate physical examinations of Mr. Gregware; however, none testified in court.
  • Prior to trial, plaintiffs’ settlement demand was $6,000,000. The defendants’ final offer was $150,000.
  • Plaintiff was represented by the eminent Ben Rubinowitz of Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf. In his summation, Mr. Rubinowitz asked the jurors to award $3,500,000 for past pain and suffering plus at least $3,500,000 for the future. As to Mrs. Gregware’s loss of services claim, he asked for a total of $1,000,000 but the jurors went beyond that sum and awarded a total of $1,125,000.

 

On February 19, 2009, Ruben Corena drove his truck to the Sunoco gas station at 880 Garrison Avenue in the Bronx. While walking back to his truck after paying for his fuel, Mr. Corena fell and sustained injuries due to cracked pavement and oil on the ground.

Sunoco 990 Garrison Ave. Bronx
The Site of Mr. Corena’s Fall

On January 8, 2013, in the ensuing lawsuit against the property owner and lessor, the jury returned a verdict finding that the premises was unsafe and defendants were fully at fault for the accident and plaintiff’s injuries. The same jurors then awarded plaintiff pain and suffering damages in the sum of $450,000 ($250,000 past – four years, $200,000 future – 20 years).

In Corena v. BBZZ Equities, Inc., (2d Dept. 2016), both the liability and damages verdicts have been affirmed.

As to injuries, the appellate court decision mentions only that plaintiff fell to the ground, his leg became swollen and he had a protruding bone. Here are the injury details:

  • Left Leg: spiral fracture of the distal tibia and comminuted fracture of the fibula
  • Surgery #1 on 2/20/09:  external fixation to try to bring the bone together to heal, requiring a seven day hospital admission
  • Surgery #2 in April 2009: removal of external fixator due to an infection where a metal screw had been inserted into the ankle
  • Surgery #3 on 1/25/10: open reduction internal fixation (“ORIF”) with bone graft from hip, metal plate and eight screws implanted to repair the tibia where the fracture had been infected and was not healed, requiring a five day hospital admission
  • Torn meniscus left knee requiring surgery # 4 on 7/22/10 to arthroscopically repair (healed as of trial)
  • Back – herniated disc at L4-5 (surgery has been recommended)

tib fib fx types

Mr. Corena testified that he remained in near constant ankle and back pain with leg cramps and shooting pain in his back that left him with a loss of mobility and balance requiring a cane to walk and that he is unable to take long walks, play soccer or basketball, lift or carry his grandchildren, sit for long periods or go out dancing with his wife.

Plaintiff’s expert orthopedic surgeon opined that his ankle and back injuries and pain are permanent, he has ended up with one leg slightly shorter than the other (requiring a lift in his shoe), his prognosis is “guarded to poor” and manual work is out of the question while sedentary work wold be “hard because he can’t sit.” Defendant’s expert orthopedic surgeon testified that plaintiff’s back injury was not related to the accident (and that in any event he will not need back surgery) and that while plaintiff’s tibia injury is permanent, he does not require a cane and can perform sedentary work.

Mr. Corena, 51 years old at the time of trial, had been a truck driver for the two years before his accident. He never returned to work and the jury awarded him past loss of earnings damages in the sum of $150,000. He made no claim for future loss of earnings. Defendants argued that the entire past loss of earnings award should be set aside because plaintiff did not testify as to  his job duties, his hours and his wages except to the extent that he presented in evidence his W-2 statements for 2008. The trial judge agreed, in part, reducing that aspect of the verdict to $75,000. The appellate court, though, reinstated the entire $150,000 verdict for past loss of earnings finding that plaintiff’s documentation was sufficient and his claim for past wages was not speculative.

Plaintiff’s wife of 26 years, Maritza Corena, was awarded damages for loss of consortium in the sum of $55,000 ($40,000 past, $15,000 future – 10 years). These awards were affirmed on appeal over defendants’ argument that they were excessive and based simply on her testimony that “everything” changed after the accident and her husband “does nothing” around the house. There was more, though. Plaintiff himself testified that for almost three months after the accident his wife would give him showers in the kitchen sink and wash his leg. Also, before the accident the couple would go out dancing, go to parties and visit family members, things he could no longer do. Furthermore, he described how frustrated he was regarding his disabilities and how this led to his losing his temper and fighting with his wife.

 

 

On January 23, 2009 Elgin McEachin was driving his 2003 Chevy Trailblazer southbound on Saratoga Avenue through its intersection with Park Place in Brooklyn. At the same time, a New York City Police Department lieutenant was on the job driving his unmarked 2005 Ford Escape SUV eastbound on Park Place intending to make a right turn and head southbound on Saratoga Avenue. The two cars collided violently in the intersection and the then 49 year old McEachin was injured.

In the ensuing lawsuit, a Kings County jury determined that the crash was 85% the fault of the police officer (with 15% of the blame assigned to Mr. McEachin).

The jury then awarded plaintiff pain and suffering damages in the sum of $1,100,000 ($600,000 past – 4 1/2 years, $500,000 future – 20 years).

In McEachin v. City of New York (2d Dept. 2016), the pain and suffering awards were reduced to $750,000 ($400,000 past, $350,000 future).

As set forth in the court’s decision, plaintiff sustained injuries to his lumbar spine and his left knee. Here are the injury details:

Left Knee:

  • Tri-compartment degenerative arthritis with grade four chondromalacia (extensive cartilage damage) requiring arthroscopic surgery on 3/20/09 to remove torn meniscal fragments
  • Physical therapy for six months after surgery
  • Constant and chronic pain leaving plaintiff unable to walk for long periods, bend down or stand up without pain, play basketball or lift weights, or pick up his seven year old daughter
  • Needs total knee replacement surgery in the future

mri-of-patellar-disorders-39-728

Back:

  • Lumbar disc fissures causing low back pain with radiculopathy
  • Three sessions of very painful epidural steroid injections
  • Experimental spinal cord implant procedure (to block the transmission of pain) in October 2009 leaving plaintiff with wires extruding from his back and a remote control device to control electric impulses
  • Permanent implantation of spinal cord stimulator device in December 2009 leaving plaintiff with three 28 inch long wires and a battery pack all inside his body (the battery pack implanted into one of the buttocks must be replaced every 5-7 years)

Spinal_Cord_Stimulator-1-small

Inside Information:

  • Plaintiff had been in prior motor vehicle accidents including one in 2003 in which he injured his lower back. He testified, though, that the 2003 injury resulted in minor treatment and he fully healed quickly.
  • Plaintiff injured his left knee in 1993 while playing football following which he underwent surgery for a torn anterior cruciate ligament; however, he fully recovered from that injury as evidenced, for example, by the fact that for many years thereafter until before the 2009 accident he played in a basketball league without pain or disability.
  • The defense did not call any medical experts of its own to testify as to plaintiff’s injuries and/or their causation; plaintiff called both his knee surgeon and his back pain management physician.
  • The jury deliberated over a three day period at one point finding that the police officer was negligent but had not proximately caused plaintiff’s injuries (a finding they reversed after additional deliberations).
  • At the close of the case, one of the jurors commented on the record that “[a]s much as we disagreed on things, I think every single person, juror, wanted to do the right thing. I think the moral responsibility of this jury is something I am really proud of about this country.”

On August 18, 2004 at about 6:30 p.m., Nikura Andino was on duty, riding as as passenger in a New York City Police Department car that was responding to a robbery in progress driving with lights flashing and sirens blaring.

nypd

At the same time, Ronald Mills was driving  a New York City Transit Authority Chevy Suburban and the two vehicles collided at the intersection of Boston Road and Pelham Parkway in the Bronx.

The passenger side impact to the police car caused the 36 year old Officer Andino’s head to strike her windshield. She lost consciousness and woke up in an ambulance with head, neck and back pain as well as dizziness and nausea. She was admitted to the hospital for two days and diagnosed with a concussion.

In the ensuing lawsuit, on March 25, 2013, a Bronx County jury found that the transit authority driver was fully at fault and they awarded Andino pain and suffering damages in the sum of $23,600,000 ($600,000 past – nine years, $23,000,000 future – 37 years).

The jury also determined that plaintiff was permanently disabled from work and in need of substantial future medical treatment. Accordingly, they awarded the following damages (as slightly modified by stipulation to conform to the proof):

  1. past and future lost earnings in the sum of $2,671,541 ($282,956 past, $2,388,585 future – 19 years),
  2. future loss of pension benefits in the sum of $2,486,740 (18 years), and
  3. future medical expenses in the sum of $2,388,585 (19 years).

In Andino v. Mills (1st Dept. 2016), the appellate court agreed with the defense and held that the pain and suffering award was excessive and ordered a huge reduction to $3,300,000 ($600,000 past, $2,700,000 future).

The decision mentions that plaintiff sustained a brain injury with permanent cognitive impairments, headaches, nausea and dizziness as well as injuries to her knees resulting in three surgeries and the need for a future knee replacement.

Total Knee Replacement

Here are additional injury details:

  • Brain – concussion with axonal shearing causing observable nystagmus indicative of brain injury;  “totally debilitating” migraine headaches; permanent impairments of concentration, speech and memory affecting everyday life; continued nausea,  dizziness and vertigo; increased susceptibility to development of Alzheimer’s, Parkinson’s and other degenerative conditions of the brain

concussion2

  • Left Knee surgery #1 on 3/18/05 – torn medial meniscus repair under general anesthesia with 10 mm suture anchors
  • Left Knee surgery #2 on 2/3/06 – partial medial menisectomy, chondroplasty of the patella and medial femoral condyle
  • Left Knee surgery #3 on 7/11/12 –  partial medial and lateral menisectomies, debridement/microfracture of medial femoral condyle, chondroplasty of patella and anterior femur
  • Left Knee future surgery required – total knee replacement due to absence of cartilage and permanent pain and disability
  • Right Knee – torn meniscus (from overuse) that will require future menisectomy
  • Neck – C5-6 compression and nerve damage causing chronic and constant pain not relieved with medication and continuing trigger point and epidural steroid injections

The matter of pension benefits was the subject of much disagreement not only between the parties but also between the trial and appellate judges. Under CPLR 4545 , a trial judge may reduce a personal injury verdict if, after a hearing, the judge finds that any element of economic loss encompassed in an award will be replaced by a collateral source in whole or in part. To do so, though, the collateral source payment must represent reimbursement for a particular category of loss that corresponds to a category of loss for which damages were awarded.

A collateral source hearing was held in this case wherein it was established that as a consequence of her line-of-duty injury, plaintiff was deemed by the Police Department Pension Board to be disabled from her employment as a police officer and she was therefore receiving an accidental disability allowance (“ADR”) in the amount of $69,000 per year as of August 30, 2009 (equal to 75% of plaintiff’s final salary) and lifetime medical coverage.

Defendants contended that the ADR replaces both the earnings plaintiff would have received had she continued working as a police officer and the pensions she would have received upon retirement from the force and that therefore the ADR and health insurance benefits should offset the jury awards for loss of earnings, lost pension and future medical expenses. Plaintiff argued that the ADR is a substitute for an ordinary pension, not lost earnings.

The trial judge agreed with plaintiff and declined to offset any part of the award.

The appellate court, though, disagreed (in part) ruling that the future loss of pension benefits award should be offset by the total amount plaintiff was projected to receive under her disability pension, effectively reducing the $2,486,740 aspect of the verdict to zero.

Inside Information:

  • In his closing argument, plaintiff’s attorney asked the jurors to award pain and suffering damages in the sum of $30,000,000 ($5,000,000 past, $25,000,000 future);
  • The attorney for the transit authority did not mention any figures in closing while simply suggesting that plaintiff’s brain injury claims were exaggerated and stating that it was up to the jurors to determine the significance of plaintiff’s knee injuries. In defendant’s appellate brief, though, it was conceded that “plaintiff’s brain injury obviously was a very serious injury” and she is “obviously entitled to a seven-figure award for her traumatic brain injury.”
  • Plaintiff underwent an electroencephalography (“EEG”) and computer axial tomography (“CAT”) scans that were negative for seizures and intercranial bleeding. An MRI showed subcordial white matter changes. There were no neuropsycholgical tests administered.

 

 

On March 29, 2009, Blanca Soltero was injured when she fell from a slippery two foot high ledge in a subway tunnel while working as part of a team of  New York City Transit Authority track workers who were replacing old tracks.

track workers

Claiming significant knee injuries, Ms. Soltero sued the City of New York, the owner of the subway tracks. Her motion for summary judgment  under Labor Law 240 was granted and affirmed on appeal.

In the ensuing damages trial, on July 20, 2012, the Bronx County jury awarded plaintiff pain and suffering damages in the sum of $508,000 ($108,000 past – 3 1/2 years, $400,000 future – 21 years). She was also awarded lost earnings damages in the sum of $1,234,000 ($246,000 past, $988,000 future – 21 years).

Both parties made post-trial motions seeking modifications of the amounts of the damages awards:

  • plaintiff argued that (a) the pain and suffering awards were inadequate and (b) the future loss of earnings award was also inadequate
  • defendant argued that (a) the pain and suffering awards were fair and reasonable and thus should not be increased and (b) the loss of earnings awards were excessive.

The trial judge, Alison Y. Tuitt, ordered an increase in the pain and suffering awards to $1,125,000 ($375,000 past, $750,000 future) and declined to disturb the awards for loss of earnings.

As set forth in Judge Tuitt’s post-trial decision, plaintiff’s right knee injuries included several torn ligaments (anterior cruciate, medical collateral and posterior collateral) as well as tears of her meniscus. She was 32 years old on the date of the accident and over the next two years underwent four surgeries:

  1. on 8/7/09 – anterior cruciate ligament (ACL) reconstruction with tibialis anterior allograft, lateral meniscus repair, partial medial meniscectomy
  2. on 5/3/10 – arthroscopy, chondroplasty lateral compartment, removal of painful hardware, partial medial meniscectomy
  3. on 1/21/11 – arthroscopy, partial lateral meniscectomy, chondroplasty and removal of loose chondral body
  4. on 9/26/11 – arthroscopy, patellofemoral chondroplasty, microfracture lateral femoral condyle, grade IV chondral defect, and open tibial tubercle osteotomy/anterior medialization
ACL Reconstruction
ACL Reconstruction

Plaintiff’s orthopedic surgeon, Laith Jazrawi, M.D., testified that her knee was already arthritic and would get worse, she will have permanent pain, discomfort and reduced range of motion, will never be able to return to work as as trackworker and will require two total knee replacement surgeries in the future. There was no medical testimony for the defense.

The defendant consented to the increased pain and suffering awards but appealed claiming that  (a) the past loss of earnings award was excessive and should be reduced by $51,000 (based upon calculations of plaintiff’s expert and the amount asked for by plaintiff’s attorney is his closing argument) and (b) the rate of interest to be paid on the judgment should be reduced from 9% to 3% as set forth in Public Authorities Law Section 1212(6).

In Soltero v. City of New York (1st Dept. 2015), the appellate court (a) rejected the defendant’s argument as to past loss of earnings holding that there was sufficient evidence at trial for the jury’s award and (b) agreed with the defendant that 3% is the proper judgment interest rate in this case because a public authority (New York City Transit Authority) is the real party interest, is bound to indemnify the City pursuant to a lease and will ultimately pay the judgment.

Inside Information:

  • Plaintiff was also awarded $258,000 for future medical expenses (21 years) and the parties stipulated to $75,000 for past medical expenses (the amount paid by plaintiff’s workers compensation carrier).
  • Although two years before the trial (and a second time one year before trial), defendant had plaintiff examined by an orthopedic surgeon, no expert witness disclosure was made until the eve of trial and the defendant was therefore precluded from calling the expert (a new orthopedic surgeon) to testify at the trial.

On November 20, 1997, John Konvalin was a passenger on a Queens-bound subway train that collided into a train in front of it. The crash caused him to be thrown to the floor and fellow passengers to fall on top of him. Mr. Konvalin and the others were evacuated through the tunnel.

Subway Crash

The New York Times reported that 87 people were injured, among them Mr. Konvalin who, in pain, limped through the tunnel and was taken to the hospital where he was treated for a bruised left knee.

Normal Knee Anatomy
Normal Knee Anatomy

In his ensuing lawsuit against the transit authority, liability was conceded but plaintiff, a 58 year old salesman, ended up with serious hip and knee injuries and underwent extensive treatment that, in part, delayed the trial until 2012. The jury awarded pain and suffering damages in the sum of $450,000 (all for the 12 year period from the date of the accident to the date of the verdict, nothing for future damages).

In Konvalin v. New York City Transit Authority (Appellate Term, 2nd Department 2015), the award has been affirmed.

The court’s decision gives no information as to the injuries except to state that plaintiff underwent “several surgeries.” Here, then, are the injury details:

  • Left hip pain caused by repetitive stress from a gait that was altered because of knee pain resulting in joint deterioration and arthritic pain requiring total hip replacement surgery in January 2005
  • Left knee patella contusion resulting in chondromalacia, complex tears of the lateral meniscus and post-traumatic arthritis requiring two surgeries (arthroscopic meniscal repair in August 2005 and total knee replacement in 2009)
  • Extensive physical therapy regimens before and after all surgeries

replaced_hip_w

Plaintiff conceded that he made an excellent recovery from his injuries and did not challenge the jury’s failure to award any damages for future pain and suffering.

The defendant argued that the pain and suffering award was excessive based upon the facts that plaintiff had pre-existing arthritis in his hip, there was no record of any complaint about hip pain for at least two years after the accident and that the subway crash merely sped up by no more than four years his need for the surgery he underwent in 2005.

As to the knee, the defense argued that a 1998 MRI did not show a meniscal tear and a patella contusion would not “spread” arthritic changes to the remainder of the knee joint  and that therefore both knee surgeries were unrelated to the accident.

Inside Information:

  • Plaintiff also had pre-existing arthritis in his right hip, unrelated to the accident, that required total hip replacement surgery in 2008.
  • Plaintiff’s treating surgeons did not testify at trial; instead, he produced an expert who first examined plaintiff in 2009 (more than 10 years after the accident).

On September 15, 2009, Adelina Reyes was injured when she tripped and fell due to a defective subway grating on the sidewalk at 138th Street near Willis Avenue in the Bronx.

Grating Near the Scene
Subway Grating Near the Scene

The transit authority conceded liability and a lawsuit by the 53 year old Ms. Reyes addressed only the issue of damages.

On September 27, 2013, after eight days of trial, a Bronx jury returned a verdict for plaintiff’s pain and suffering in the sum of $1,000,000 ($250,000 past – four years, $750,000 future – 29 years).

The defendant appealed on the sole issue of excessiveness of the future damages.

In Reyes v. New York City Transit Authority (1st Dept. 2015), the award has been affirmed.

As set forth in the court’s decision, plaintiff sustained a torn meniscus that required arthroscopic surgery.

menisect

Here are more injury details:

  • transported from the scene by ambulance to the local hospital where a 10 centimeter laceration was debrided and closed with 15 staples
  • physical therapy three times a week for two years
  • arthroscopic surgery on 2/17/12: partial medial menisectomy (removal of part of the meniscus) and patella chondroplasty (removal of cartilage)
  • development of post-traumatic arthritis with Grade IV chondromalacia of the head of the femur
  • continuing pain and inability to return to work as a street cart vendor
  • antalgic gait requiring use of cane
  • need for total knee replacement surgery in about eight years

femoral chondromalacia

Ms. Reyes also sustained three bulging lumbar discs but she did not testify as to any continuing back pain. The defendant argued that this aspect of her injury was merely a lumbar strain that had resolved.

Inside Information:

  • In closing arguments, plaintiff’s attorney asked the jury for $250,000 for past pain and suffering plus $400,000 for the future.
  • Plaintiff admitted that her Facebook page contained a photograph of her standing in high heels without a cane, taken about 15 months before trial at a party for her daughter.
  • The jury awarded nothing for future medical expenses despite testimony that the future knee replacement surgery would cost about $50,000. Defendant argued on appeal that this meant that the jury did not believe plaintiff would undergo the surgery and that, therefore, the future pain and suffering award was excessive.
  • Plaintiff made no claim for loss of earnings.

On October 6, 2009, Marcia Saft was walking home after dinner with her husband at a local restaurant in Manhattan. She tripped and fell on the sidewalk in front of 229 East 81st Street where Con Edison had placed temporary electric cable encased in a shunt board running from the street to the building.

An illustration from the utility company’s web site depicting a yellow shunt board (the shunt in this case was black with an orange stripe):

Ms. Saft’s foot got caught in the edge of the shunt and she fell forward to the ground onto her knee sustaining an injury requiring immediate ambulance transport to the hospital and surgery the next day.

In the ensuing lawsuit, plaintiff claimed that Con Ed was negligent because the presence of the shunt without any warnings made the sidewalk unreasonably dangerous at night. The defendant contended that the shunt was open and obvious, there was ambient light, no need for cones or a barricade and that Ms. Saft was not paying attention.

On May 16, 2013, the Manhattan jury determined that each party was 50% liable for the accident.

The jury then awarded the 64 year old plaintiff pre-apportionment pain and suffering damages in the sum of $50,000 ($34,000 past – 3 1/2 years, $16,000 future – 15 years). Plaintiff appealed contending that the damages award was inadequate.

In Saft v. Consolidated Edison Co. of N.Y., Inc. (1st Dept. 2015), the pre-apportionment damages award has been increased to $520,000 ($370,000 past, $150,000 future).

The court’s opinion omits any mention at all as to the injuries sustained. Here are the details:

  • comminuted patella fracture with tears of the retinaculum
  • open reduction internal fixation surgery –  with excision of shattered distal portion of the patella and tendon reattachment through holes drilled in the patella
  • three day hospital admission
  • casted for six weeks, about one month in a wheelchair and another month or so using a walker
  • permanent pain and inability to resume nightly two mile walks with her husband (an activity they enjoyed almost every day for decades before)

Inside Information:

  • The only medical witness to testify was an orthopedic surgeon retained by plaintiff. He reviewed her medical records but was not asked to examine her.
  • The first question defense counsel asked plaintiff’s expert on cross-examination was: “Nasty injury?” After the affirmative answer, plaintiff’s counsel repeated the word “nasty” several times in his closing argument when referring to Ms. Saft’s injury.
  • Defense counsel suggested on appeal that the pre-apportionment damages should be increased to $100,000.
  • Plaintiff’s counsel asked the jury to award the exact figures adopted by the appellate court ($370,000 for past pain and suffering plus $150,000 for the future).