Loss of Consortium Damages

On November 7, 2013, Paige Mecca, a 43 year old owner of a small solar energy company, was struck in the head and neck by a large 40 pound tray of dishes and food dropped by a waitress who lost her balance at a luncheon at the Buffalo Niagara Convention Center.

The Buffalo Niagara Convention Center

Claiming that the convention center was liable for the negligence of its waitress and Ms. Mecca’s resulting traumatic brain injuries, suit was brought in Supreme Court, Erie County. On October 11, 2016, the jury returned a verdict finding the defendant fully at fault for the incident and injuries and awarding plaintiff pain and suffering damages in the sum of $625,000 ($250,000 past – three years, $375,000 future – 36 years).

In a post-trial motion, Ms. Mecca successfully argued that the damages award was inadequate; the the judge ordered an increase to $3,800,000 ($800,000 past, $3,000,000 future).

On appeal in Mecca v. Buffalo Niagara Convention Center Management Corp. (4th Dept. 2018), the trial judge’s increase was set aside and jury’s  pain and suffering award was reinstated.

Here are the injury details:

  • traumatic brain injury (TBI)
  • cerebral hypoperfusion
  • concussion
  • cognitive fatigue and impairment
  • memory loss
  • jamais vu (unfamiliarity with her surroundings)
  • impaired coordination and balance, dizziness, double vision
  • complex partial seizures
  • C4-5 and C5-6 disc herniations
  • sleeplessness, anxiety, depression and sexual difficulties
  • can no longer drive a car, take a vacation, hike or be intimate with her husband
  • has only about two hours of “good time” a day, remaining essentially housebound except for medical care

Plaintiff claimed that all of her injuries are permanent, she has not and cannot return to work and she will require lifelong medical treatment. Defendant contended that plaintiff exaggerated her symptoms, malingered and her alleged injuries were nowhere near as serious as she claimed. They also claimed she had significant pre-existing conditions including neck pain for which she (briefly) treated with an acupuncturist, a concussion (12 years earlier) and migraine headaches (associated with her hormonal cycle).

A central disagreement between the parties was whether there was sufficient, or any, objective proof of a brain injury. Plaintiff conceded that she had no visible bruises from the incident, there was no loss of consciousness, she remained at the luncheon until it ended and did not seek any medical attention until she was treated briefly at an urgent care center that night. She did, though, follow up with a neurologist two days later complaining of disorientation, confusion, headaches, dizziness and anxiety. She soon began experiencing seizures and over the next three years, Ms. Mecca treated extensively for these and other injuries (especially, neck pain) with providers in many different specialties including neurology, spine surgery, orthopedic surgery, concussion, physical therapy, ophthalmology and psychology. And she went for treatment and second opinions five times at the Mayo Clinic in Minnesota.

Although most diagnostic testing (MRI, CT, EEG) did not disclose any objective brain injury, a so-called  SPECT scan (single-photon emission computerized tomography) showed a pattern of hypoperfusion affecting several areas and significant volume of the brain, consistent with traumatic brain injury. Two defense medical experts contended, though, that  SPECT studies are generally unreliable and one of them, a neurosurgeon who examined plaintiff, concluded that she had no injury, impairment or disability to her brain and that she has “either a psychosomatic conversion reaction or is malingering, fabricating, hysterical or a combination of these.”

Plaintiff claimed she will require substantial medical treatment for the rest of her life, including medications, diagnostic tests, cognitive, physical and other therapies and home health aide services. Her life care plan specialist opined that the cost for all future medical expenses will be $2,200,000. The defense argued that plaintiff required no future medical treatment at all due to the incident. The jury awarded past medical expenses in the sum of $49,000 plus future medical expenses in the sum of $617,000 (36 years). The trial judge increased the future medical expense award to $2,200,000 but the appellate court reinstated the $617,000 jury award.

The jury also awarded $582,330 for past lost wages and business profits (Ms. Mecca had been earning about $130,000 a year and her business was growing substantially until she was injured) plus $500,000 for the future (14 years). After the trial judge ordered an increase of the future award to $5,000,000, the appellate court reinstated the jury award.

Plaintiff’s husband presented a claim for the loss of his  wife’s services and society based upon “the virtual loss of his active, vibrant, loving and caring wife.” He asserted he now has to bear sole responsibility for caring for, nurturing and guiding their three teen-age sons, faces the prospect of all of the years with his wife after the boys have grown and left home and that the loss of his wife’s significant financial contributions to the family has put extra financial pressure on him.  The jury awarded loss of services and society damages in the sum of $950,000 ($300,000 past, $650,000 future – 10 years), an amount the trial judge did not disturb and the appellate court affirmed.

Inside Information:

  • When the jury announced a verdict had been reached, there was no award at all for Mr. Mecca’s loss of services and society. Plaintiff’s counsel immediately argued that this was inconsistent since the jury found for plaintiff on liability and awarded her substantial past and future damages in all other categories. After some colloquy on the record, the trial judge asked the jurors if they rejected this claim upon which the foreperson told the judge they “decided that we didn’t have to do separate amounts for [plaintiff and her husband]. We didn’t realize.” The judge told them they have to “separately decide that,”  he recharged the jury and 20 minutes later they announced a $950,000 verdict for loss of services and society.
  • In his summation, plaintiff’s counsel asked the jury to award “three to four million dollars” for past pain and suffering and for the future an amount at least equal to plaintiff’s entire economic loss. Defense counsel focused on his contention that his clients were not at all negligent while suggesting that if the jury were to rule otherwise $100,000 should be awarded for pain and suffering.
  • The defendants argued that plaintiff caused the accident when plaintiff, after having leaned forward in her chair causing its rear legs to come off the ground, then leaned backward as the waitress with the tray walked by and the chair came down on her foot causing her to lose her balance. There was no corroborating evidence as to this version of the facts.




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

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

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

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

Here are the injury details as to Mr. Sehgal:

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

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

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

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

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

Inside Information:

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

For about eight months from 1964 to 1965, Harry Brown was exposed to asbestos while he worked as an insulator at Ravenswood 3, a newly constructed Con Edison powerhouse in Long Island City in Queens.


Mr. Brown was diagnosed with mesothelioma in June of 2012 and died from the disease on September 8, 2013 at the age of 75. He is survived by his wife Phyllis Brown and adult children.

Before he died, Mr. Brown and his wife sued Con Edison and others alleging his exposure to asbestos-containing materials over the course of his 15 year career as an asbestos installer caused his mesothelioma. The suit was based on Labor Law 200 and common law negligence principles that require employers to provide a safe place to work.

After a four month trial, a Manhattan jury rendered a verdict on March 18, 2014 finding that Con Edison had exercised supervision and control over workers at the powerhouse, failed to exercise reasonable care to keep the premises safe and that the failure was a substantial contributing factor in causing plaintiff’s mesothelioma. The jurors then awarded damages for (a) pain and suffering in the sum of $2,500,000 (past only – 18 months) and (b) Mrs. Brown’s loss of services in the sum of $1,000,000 (18 months).

Defendant made a post-trial motion asking the trial judge to set aside the jury verdict claiming that there was insufficient proof that Con Edison exercised supervision and control over Mr. Brown’s work.  The motion was granted in an extensive decision on August 29, 2014 that was adhered to seven months later in a decision following plaintiff’s motion to reargue.

Con Edison did not challenge the pain and suffering award in its post-trial motion but did, alternatively argue that the loss of consortium award was excessive. Although she vacated the judgment and dismissed the complaint against Con Edison, the trial judge also ordered that the loss of consortium award be reduced to $360,000.

Plaintiff appealed arguing that (a) there was sufficient evidence to support the jury’s finding of supervision and control under the statute and (b) the trial judge’s decision insofar as it addressed loss of consortium damages was advisory only in that having granted defendant’s motion to set aside the verdict, the issue of damages then became moot and, therefore, should the appellate court reinstate the liability verdict it should also reinstate the $1,000,000 loss of consortium award.

In Brown v. Bell & Gossett Company (1st Dept. 2017),  the liability verdict against Con Edison has been reinstated and the award for loss of consortium damages has been reduced to $360,000.

The defendant argued that the loss of consortium award was unwarranted based on the fact that at the time of Mr. Brown’s diagnosis and subsequent death, he had been retired from work, his children were grown and no longer living with him, he was also already suffering from stage four prostate cancer (unrelated to his asbestos exposure) and there no testimony from Mrs. Brown to evidence what support and services she lost, other than the loss of her husband’s love and companionship.

Plaintiff argued, and the appellate judges apparently agreed (to an extent) that the defendant and the trial judge overlooked testimony from Mrs. Brown that proved she sustained significant loss of consortium damages. For example, she testified that her husband did repairs on their house including plumbing and building a garage, took care of all of the family finances including paying the bills, maintained the lawn and in general “took care of” both Mrs. Brown and their house. Furthermore, she testified that she assisted her husband daily with the medical consequences of his tragic disease such as draining his surgical incisions, attempting to control diarrhea, helping him move his body and dealing with the emotional problems affecting them both.

Inside Information:

  • Although Mr. Brown died two months before trial, he testified during pre-trial proceedings and the transcript of his deposition was read to the jurors.
  • Since the jury found that Con Edison did not act recklessly, its obligation to pay the damages awarded is limited to 65%:  its 30% proportionate share of liability plus, under CPLR 1602, the 35% share of plaintiff’s employer (defendant Robert A. Keasbey Co.).


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


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 October 10, 2004, Donald Schultz twisted his ankle walking up the stairs at work (he was a 36 year old police dispatcher for the City of Tonawanda) and sustained a simple, non-displaced ankle fracture.  He was treated at the local hospital with a brace and instructed to follow up with an orthopedic surgeon.

Mr. Schultz treated with an orthopedic surgeon the next day and, due to unremitting and severe pain on the outside portion of his foot in the area of his fifth metatarsal (the “little toe”), he continued to treat with that surgeon for the next 13 months.


As the pain increased and continued, the doctor noted a concern for RSD (complex regional pain syndrome) and he performed two surgeries on Mr. Schultz’s ankle – first on May 13, 2005  to alleviate the non-union of the fracture and then on September 9, 2005 to tighten the ankle ligaments.

Mr. Schultz’s pain was intractable and unrelenting so on November 10, 2005, he sought out and came under the care of a new orthopedic surgeon. That doctor diagnosed avascular necrosis and on November 30, 2009 performed surgery on Mr. Schultz’s fifth metatarsal and two months later he amputated the head of that toe. The pain progressed, though, and the remaining stump of the toe was then amputated.

Many more surgeries were performed by the new surgeon – 12 in all –  including a below the knee amputation until finally, on October 6, 2009, Mr. Schultz underwent an above-the-knee amputation (performed by a third surgeon).


Mr. Schultz sued his first two orthopedic surgeons claiming  that (a)  the first surgeon should not have performed the two surgeries on Mr. Schultz’s ankle in the face of a suspected diagnosis of RSD because doing so aggravated the RSD and (b) the second surgeon performed various surgeries that were contraindicated and either without a diagnosis or with an incorrect diagnosis.

On February 4, 2014, the Erie County jury found that only the second surgeon was negligent and they awarded pain and suffering damages in the sum of $6,000,000 ($2,000,000 past – eight years, $4,000,000 future – 20 years).

In Schultz v. Excelsior Orthopedics, LLP (4th Dept. 2015), both the liability and damages verdicts were affirmed.

Plaintiff’s orthopedic surgery expert (an instructor at the Yale School of Medicine for 30 years) opined that the second surgeon’s deviations from appropriate standards of care included the following:

  • the first surgery, on 11/30/09, was done without a definitive diagnosis to warrant it in a patient with a known pain syndrome
  • the second, third and fourth surgeries, on 1/25/06 (to remove the head of plaintiff’s fifth metatarsal), on 6/23/06 (amputation of the fifth metatarsal) and on 2/16/07 (amputation of the remainder of plaintiff’s fifth metatarsal), were not based upon a defined diagnosis and were not needed
  • surgeries on 3/21/07 and 3/17/08 (closing a wound and excising a neuroma) caused unwarranted infections
  • surgery on 10/1/08 (amputating plaintiff’s fourth toe) was based upon an erroneous diagnosis of bone infection or osteomyelitis
  • surgery to amputate plaintiff’s leg below the knee was done on a viable limb, without a bone biopsy and based upon an erroneous diagnosis of osteomyelitis

In addition to all of the foregoing, plaintiff’s injuries included:

  • five more surgeries or procedures after his above the knee amputation to assist with the fitting of his prosthetic leg and to deal with infection issues
  • extensive depression and anxiety requiring psychological treatment and medication and resulting in a suicide attempt
  • total disability from employment as of November 2009
  • stress leading to divorce from his wife one year before trial

In addition to damages for pain and suffering, plaintiff was also awarded and the appellate court affirmed damages for plaintiff’s loss of past and future earnings and benefits in the sum of $1,205,989 and approximately $1,100,000 for other future economic damages over 20 years (including $655,500 for prosthetic devices, $157,866 for medical supplies and $135,744 for medications).

Inside Information:

  • Plaintiff’s ex-wife was awarded $350,000 for her loss of services claim for the seven year period from the date of defendant’s negligence to the date the parties no longer resided in the same household. She testified that she became his primary caregiver with their young son and took over all household duties. Mr. Schultz’s treating psychologist testified that his medical problems contributed substantially to the divorce after 23 years of marriage.
  • In his closing argument, plaintiff’s attorney asked the jury to award pain and suffering damages in the precise sum – $6,000,000 – that they decided upon. He made no suggestion as to the loss of services claim.

On October 24, 2008 Robert Loja was working for a landscaping firm in Sleepy Hollow. Just after parking his employer’s truck on Benedict Avenue and unloading his lawn mowing equipment from his truck’s trailer, Loja was struck by a car driven by a young woman on her way to work. His legs were crushed between the car and his trailer.

15 - Google Maps
The Scene of the Accident

When he woke up in a hospital two days later, the 35 year old Loja learned that his left leg had been amputated above the knee.

In the ensuing lawsuit,  the driver contended that she was not at fault because there was a blinding sun glare and the roadway  was improperly and unsafely blocked off by plaintiff and his employer.

sun glare

The Westchester jury found the driver only 10% at fault while charging plaintiff with 30% of the fault and the landscaping company with 60%.

On January 27, 2012, the jurors awarded pain and suffering damages in the sum of $5,500,000 ($2,500,000 past – three years, $3,000,000 future – 18 years).

Plaintiff was also awarded $1,000,000 for future loss of earnings (18 years) and his 25 year old wife was awarded $1,000,000 for her loss of consortium claim ($500,000 past – three years, $500,000 future – 18 years)

Appeals were pursued by both the defendant and the landscaping company (in the case as a third-party defendant because plaintiff was barred under the Workers Compensation Law from suing his employer). Defendant argued that the damages awards were excessive whereas the third-party defendant  argued only that the liability verdict was against the weight of the evidence and that evidentiary errors required a new trial.

In Loja v. Lavelle (2d Dept. 2015), the appellate court affirmed all of the damages awards but shifted the liability apportionment as follows: 50% to defendant, 10% to plaintiff and 40% to third-party defendant.

The court decision mentions that plaintiff’s legs were pinned by the car underneath the trailer and that one of his legs was amputated as a result. Here are additional injury details:

  • left leg mangled crush injury, essentially a traumatic amputation
  • surgical removal of six inches of the lower left femur, i.e., an above the knee complete amputation
  • additional surgeries (a) to wash out the stump, remove ischemic skin and insert a vacuum assisted closure dressing for wound healing, (b) to replace dressings and insert a permanent inferior vena cava filter in the abdomen to prevent blood clots and (c) to graft skin from plaintiff’s hip to his left leg stump
  • right leg – severe instability of knee joint with compartment syndrome requiring emergency  external fixation and fasciotomy
  • right ankle – tears of the anterior talofibular, calcaneofibular and other ligaments
  • back – herniated disc at L5-S1 with radiculopathy
  • post-traumatic stress disorder and major depression with guarded prognosis; needs psychotherapy and medication
  • hospitalization for one month at Westchester Medical Center and then at its related Taylor Institute for Rehabilitation for another month
  • outpatient rehabilitation for three months at three more hospitals
  • continuing phantom pain in left leg (requiring lifetime pain medication) , ill-fitting prosthesis (with several replacements needed over the years), use of cane to ambulate
  • unable to bend, lift, twist, rotate or do excessive standing or sitting
  • continuing need for electrical stimulation and brace on right ankle
  • needs total knee replacement within 5-10 years
  • unable to return to work

Inside Information:

  • By stipulation, the parties agreed that plaintiff’s damages included $98,000 for past loss of earnings and $178,318 for past medical expenses. These amounts were subject to a lien by the workers compensation carrier.
  • A settlement was discussed in open court during the trial. Defense counsel indicated that his client would pay $250,000 and that the workers compensation carrier would pay $750,000 and waive its lien of about $250,000. After a hearing in which the potential settlement was explained, Mr. Loja declined to settle.
  • Due to (a) the fact that the driver had very limited insurance coverage and (b) the intricacies of  CPLR Article 16 (regarding joint liability) and the Workers Compensation Law (which prohibits employees from suing directly their employers in work-related accidents), it appears Mr. Loja’s actual financial recovery in this lawsuit will be much less than what was offered.
  • In his closing argument, plaintiff’s attorney asked the jury to award pain and suffering damages in the sum of $7,475,000.

On July 21, 2000, Daniel Hernandez was working on a defective lighting fixture at a Great Neck construction site when he fell from a ladder and broke his leg. He never recovered from his injury (it got worse and others developed too); he was never able to return to work. His damages lawsuit took eight years  to get to trial. And then it took another four years to conclude post-trial motions (we wrote about this case three years ago,  here) and appeals.

Now, in Hernandez v. Ten Ten Co. (1st Dept. 2013), an appeals court has upheld the jury’s verdict awarding pain and suffering damages in the sum of $3,166,667 ($1,000,000 past – eight years, $2,166,667 future – 25.8 years).

The appellate court decision lists the injuries sustained by Mr. Hernandez that persuaded the judges to uphold the substantial pain and suffering award. Here are the injury details:

  • tibia and fibula fractures  – severe comminuted mid-shaft, open surgery with rod inserted from knee to ankle, fibula non-union requires future surgery and bone grafting, peroneal nerve injury, chronic and persistent pain, antalgic gait, needs crutches to ambulate
  • back injuries – radiculopathy at L4-5 and S-1 confirmed by EMG, severe  persistent low back pain
  • reflex sympathy dystrophy (RSD) – progressively worsening chronic pain syndrome affecting both lower extremities, burning pain in legs and feet, discolored and dry, flaky skin
  • depression – previously active and employed, now house-bound, reclusive and often crying, stupefied and drowsy from medications, unable to think straight or be attentive
  • sleep disorder – cannot sleep without Ambien
  • sexual dysfunction – no physical relations with wife

Plaintiff’s counsel in Hernandez argued on appeal that Serrano v. 432 Park S. Realty Co., LLC (1st Dept. 2009), a case we discussed here, is the closest comparable case that is instructive and persuasive insofar as relative injuries and awards are concerned. The judges in Hernandez agreed, citing only the Serrano case as justification for upholding the awards to Mr. Hernandez.

In Serrano, a 32 year old construction worker fell from a ladder and sustained severe wrist fractures requiring two significant surgeries leaving him with a functionally useless hand, a herniated disc also requiring surgery, RSD and depression. In that case, the jury awarded plaintiff pain and suffering damages in the sum of $4,840,000 ($600,000 past – six years.  $4,240,000 future – 38 years). The appellate court reduced the future damages to $2,500,000, resulting in a total affirmed award of $3,100,000.

Inside Information:

  • The jury’s loss of services award to plaintiff’s wife in the sum of $341,666 was affirmed on appeal. Interestingly, this award was for past loss of services only; there was no award at all for future loss of services. The award is very high relative to other cases considering it represents a period of only eight years; however, when considering the jury’s finding that Mr. Hernandez’s pain and suffering will continue for 25.8 years, the loss of services award appears reasonable (and it was not specifically challenged on appeal). Apparently, the jurors were confused.
  • Plaintiff was held to be 46.67% at fault for the accident – (with the remaining 53.33% charged to the defendant). Accordingly, Mr. Hernandez will receive a prorated reduced portion of the affirmed judgment.



This tragic amputation case was big and important at trial two years ago and now that an appeals court has weighed in, it’s still big and important.

We wrote about Gloria Aguilar’s case back in 2009, here. Ms. Aguilar, then a 45 year old housekeeper, had been run over by a city bus in 2005 and as a result her left leg had to be amputated above the knee.

In April, 2009, a Manhattan jury awarded her $27,500,000, as follows:

  • $16,000,000 for pain and suffering
  • $9,500,000 for future medical expenses
  • $2,000,000 for her husband’s loss of consortium and services 

Gloria Aguilar with her husband and two of their three children:

[Photo from New York Daily News, February 17, 2011]

As we predicted, the $27,500,000 award has been substantially reduced on appeal. Last week, in Aguilar v. New York City Transit Authority (1st Dept. 2011), the pain and suffering award was reduced to $10,000,000 ($5,000,000 past – 3.7 years, $5,000,000 future – 32.6 years).

Additionally, the medical expense award was reduced to $7,000,000 and Mr. Aguilar’s claim was reduced to $1,500,000. The total award now stands at $18,500,000.

Even with the appellate court reduction, the $10,000,000 pain and suffering award represents the largest ever approved by an appellate court in New York for a leg amputation.

Some of the details of Ms. Aguilar’s injuries are set forth in the appeals court decision. Here are some more:

  • her first of 10 surgeries was a below-the-knee amputation of her left leg but, two days later, due to devascularization and necrosis, doctors sawed off further portions of her leg, converting the procedure to an above-the-knee amputation
  • within the month, two more revisions of the amputation had to be performed, during each of which doctors sawed away more and more of Ms. Aguilar’s left leg
  • phantom pain from the severing of the sciatic nerve in her left leg
  • her right leg sustained a degloving injury in the area of her heel requiring several irrigation and debridement procedures under general anesthesia and leaving her permanently unable to control her ankle or support her right leg, essentially wheelchair bound and unable to care for her own hygenic needs
  • her post-traumatic stress disorder and severe depression, with recurrent nightmares and sleep disorders, were described in detail by an expert psychiatrist who testified that they are permanent and that she needs to continue in the regular care of a psychologist as she’s been doing since her initial hospitalization
  • extensive medication is needed for pain and depression, including more than a dozen pills a day and a pain patch on her foot

The defense contested liability at trial but in the appeal did not challenge the jury’s finding that the bus driver was 100% at fault.

Conceding that Ms. Aguilar’s injuries were horrific and life-changing, the defendant argued on appeal that $16,000,000 for pain and suffering was excessive and, in particular, urged that the jury should not have been permitted to make awards for "mental suffering, emotional and psychological injury" in addition to awards for physical pain and suffering.

It was indeed wrong for the trial judge to allow the jury to make separate awards for mental and physical pain and suffering. As the defense suggested, that may have resulted in a higher overall verdict than would have been reached had there properly been only one pain and suffering category.

Defense counsel, however, did not at trial object to the separate awards for mental and physical pain and suffering and, in any event, the appellate judges found that the error was not so egregious as to require a new damages trial. They simply reduced the combined pain and suffering awards by $6,000,000 and held that $10,000,000 is a reasonable sum for all of the (mental and physical) pain and suffering in this case.

There was very little comparable precedent discussed by the parties or cited by the court as to what would be a proper sum for pain and suffering. Bondi v. Bambrick (1st Dept. 2003) appears to be the most relevant. In that case, a $9,750,000 pain and suffering award ($2,250,000 past – 5 years, $7,500,000 future – 50 years) was upheld on appeal for a 35 year old woman in a motorcycle accident who sustained a traumatic below-the-knee amputation of her leg.

Ms. Bondi underwent nine surgical procedures, was in constant pain for which she required many drugs and a pain patch, had pervasive scarring and suffered similar psychological trauma. Ms. Aguilar’s attorney, Ben B. Rubinowitz, argued that factoring in the rise in inflation since 2003, the $9,750,000 approved in the Bondi case represents a figure today well in excess of $10,000,000. The appellate judges apparently agreed.

Inside Information:

  • Before trial,  Ms. Aguilar was examined by experts retained by the defense in several specialties – orthopedic surgery, rehabilitation medicine, plastic and reconstructive surgery and neuropsychology; however, none of these experts were called to testify at trial.
  • Mr. Aguilar’s award for loss of consortium and services, even as reduced on appeal from $2,000,000 to $1,500,000, is a record award. In this regard, the appellate decision mentions only the fact that due to the accident he and his wife have been unable to engage in marital relations. Unmentioned were numerous other facts of their daily existence such as his lifting her in and out of the wheelchair, holding her while on the toilet, and wiping, cleaning and bathing her.




Theresa Capwell was 33 years old and in good health when she started experiencing abdominal pain. She was diagnosed with pancreatitis (an inflammation of the pancreas) and admitted to Westchester Medical Center on September 18, 2000.

Within five days of her hospital admission, Theresa suffered acute respiratory distress and she was placed on a ventilator. On October 4th, she suffered a heart attack and brain damage from lack of oxygen (anoxic brain damage).

As a result of the anoxia, she was in a persistent vegetative state from which she never recovered and Theresa Capwell died 11 months later on September 10, 2001.

A medical malpractice lawsuit followed – Capwell v. Guneratne (Supreme Court, Westchester County, Index #14832/02) – in which plaintiffs (Theresa’s husband and their three young daughters) claimed that her brain damage and death were caused by mistreatment of her pancreatitis and mismanagement of her respiratory condition.

Essentially, plaintiffs argued that the doctors at Westchester Medical Center failed to recognize that Theresa’s problems stemmed from pancreatitis. Instead, they erroneously suspected and treated her for ovarian cancer. That misdiagnosis led to a cascade of ever worsening medical problems: Theresa got sicker and sicker and ultimately suffered from life threatening respiratory distress that led to a ventilator placement, a tension pneumothorax, a heart attack and anoxic brain damage. Then, death.

The jury returned a verdict in plaintiff’s favor on December 12, 2008 finding that the hospital’s malpractice had caused Theresa’s injuries and they awarded $7,000,000 in damages as follows:

  • pre-death pain and suffering – $3,000,000 (11 months)
  • loss of consortium$4,000,000 (11 months)

The defense made a post-trial motion challenging the verdict amounts as excessive. The plaintiffs countered that they were reasonable and asserted their own challenge for the jury’s failure to award any wrongful death damages (i.e., economic losses sustained by the family members due to Theresa’s death, such as the value of her household services and parental guidance). In a post-trial decision, the judge rejected the defense claim that the pain and suffering award was excessive but agreed that the loss of consortium award was excessive and should be reduced – to $1,000,000.

Also, the trial judge agreed with plaintiffs that there should be a new trial on the issue of wrongful death damages – that is, whether, in addition to causing Ms. Capwell’s pre-death injuries, the malpractice also caused her death. If so, her family may be entitled to substantial additional economic damages, most significantly loss of parental guidance for the 7, 9 and 11 year old girls.

The defendant appealed. This week, in Capwell v. Muslim (the name of the case after some defendants were dismissed) (2d Dept. 2011), the appellate court affirmed the trial judge’s decision.

Plaintiffs argued, successfully, that $3,000,000 is a reasonable sum for pain and suffering in this case because, as a result of the brain damage until her death 11 months later, Theresa Capwell was:

  • confined to her bed
  • lived out her days cared for by others in every aspect of her existence
  • could not communicate with the outside world beyond facial expressions, hand squeezing, eye movements and following simple commands (like moving her feet)

The affirmance of a $3,000,000 pre-death pain and suffering for a period of 11 months is quite significant. Generally, pain and suffering awards in brain damage cases that are sustained in excess of $1,000,000 involve much longer periods of time, such as:

  • Reed v. City of New York (1st Dept. 2003) – $5,000,000 ($2,500,000 past – 6 years, $2,500,000 future – 30 years); 43 year old; brain damage with progressive tissue loss in lobes
  • Paek v. City of New York (1st Dept. 2006) – $4,300,000 ($1,300,000 past – 6 years, $3,000,000 future – 40 years); 36 year old; traumatic brain injury with severe cognitive dysfunction
  • Weldon v. Beal (2d Dept. 2000) – $5,000,000 ($2,000,000 past – 12 years, $3,000,000 future – 15 years); 26 year old; anoxic brain damage
  • Evans v. St. Mary’s Hospital (2d Dept. 2003) – $1,800,000 ($800,000 past – 13 years, $1,000,000 future – 31 years); 28 year old; anoxic brain damage

Plaintiffs argued that while Theresa’s period of suffering was much less than those in most cases involving multi-million dollar pain and suffering awards for brain damage, the distinctive factor in this case is that the 11 month period represented the remainder of plaintiff’s life. Thus, they cited Cepeda v. New York City Health and Hospitals Corp. (1st Dept. 2003) in which $750,000 was held reasonable for an infant who died 12 days after suffering severe brain damage at birth due to medical malpractice. In that case, the court found that the fact that decedent experienced pain and suffering for most of her life was a factor in assessing the pain and suffering award.

Interestingly, neither party discussed the relevance of a recent case – Schaffer v. Batheja (2d Dept. 2010), about which we wrote in detail, here. In that case, the court approved a pre-death pain and suffering award of $2,500,000 for a woman in a coma who was only sporadically aware of her condition (she’d lapsed into a coma due to medical malpractice) for the 4 1/2 years until she died.The distinction between these two cases appears to be that the court determined that Ms. Capwell’s level of awareness was much more significant than Mrs. Schaffer’s.

The $1,000,000 loss of consortium award was based upon the fact that Scott and Theresa Capwell had enjoyed an idyllic 11 year marriage described by him as "the perfect life." They raised three young girls (Theresa was the homemaker, Scott the bread winner), enjoyed a very intimate relationship and were in "bliss." After the malpractice, for 11 months, their entire relationship consisted of his visiting her in the hospital, touching her face and kissing her in an effort to relax her, playing her favorite television shows and watching her deteriorate and die. The testimony in this regard was quite poignant and the appellate judges declined to disturb the trial judge’s reduction of the jury award for loss of consortium from $4,000,000 to $1,000,000.

Inside Information:

  • As to pain and suffering, the defense argued not only that $3,000,000 is excessive but also that Theresa was already suffering from numerous underlying health problems when she entered the hospital and that plaintiffs failed to prove she sustained new, different or exacerbated pain and suffering.
  • Plaintiffs’ law firm, Kramer, Dillof, Livingston & Moore, is widely recognized as one of the top medical malpractice firms in the state.
  • The loss of parental guidance claims belonging to Theresa Capwell’s three young daughters could add several million dollars more to the plaintiffs’ recovery in this case. As much as $1,500,000 has been held reasonable by an appellate court for loss of a young child’s parental guidance (Paccione v. Greenberg – 2d Dept. 1998). If the new jury in Capwell v. Muslim finds a causal connection between the malpractice and the death and determines to award parental guidance damages, the size of the awards in this case may break new ground.




On October 3, 1996, Edith Schaffer, then 67 years old, voluntarily admitted herself to a small psychiatric hospital in Ossining, New York, for an episode of depression and anxiety. The next day, she suffered the first of a series of seizures and was sent to a nearby community hospital for a neurological consult and tests.

Mrs. Schaffer’s tragic odyssey began here:

Two days later, due to an undiagnosed critically low serum sodium level (hyponatremia), Mrs. Schaffer lapsed into a coma where she remained until her death on June 6, 2001.

Her husband sued the hospitals and various doctors and on November 6, 2008 a Westchester County jury found that a by-then deceased doctor at the community hospital was fully liable for Mrs. Schaffer’s injuries and death in that he failed to appreciate the significance of her condition which was easily reversible.

We discussed this case, Schaffer v. Stony Lodge Hospital, here, back in January 2009. The trial judge denied the defendant’s motion to set aside the verdict. Now, a decision has been issued on the appeal and the judges drastically reduced the pain and suffering award from $5,000,000 to $2,500,000.

The appellate court decision in Schaffer v. Batheja (the name of case after some defendants were dismissed) does not mention any of the facts upon which the judges relied in reducing the pain and suffering award except for stating that “Mrs. Schaffer was only sporadically aware of her condition” during the 4 ½ years she lay in a coma.

In cases where a plaintiff is comatose or in a vegetative state, her level of consciousness, if any, will be the key to whether and the extent to which a pain and suffering award will be upheld.

Under the leading case of McDougald v. Garber (Court of Appeals,1989), to support a pain and suffering award plaintiff had to prove that Mrs. Schaffer had “some level of awareness.”

We have dug up the underlying facts and arguments as to consciousness that were brought out at trial. Each side relied upon different aspects of the following evidence:

  • the testimony of doctors and nurses who treated Mrs. Schaffer over the years
  • the testimony of family members who came to visit
  • the opinions of medical experts
  • notations in the voluminous medical records

Plaintiff argued that Mrs. Schaffer was well aware of her condition and experienced pain in view of evidence that she:

  • abducted her shoulder and flexed her upper extremities in response to nail bed pressure
  • opened her eyes on occasion and followed people moving in her room with her eyes
  • cried and tears came to her eyes often when her family came to visit
  • sometimes moved her head on command

The defense argued that there was insufficient proof that Mrs. Schaffer had any level of awareness from the time she lapsed into a coma until her death, based on evidence that she:

  • was comatose at all times
  • had no ability to communicate or consciously sense any pain
  • reacted to painful stimuli only reflexively
  • was in a persistent vegetative state in which eye openings can occur when one is not at all awake

As to the amount of the pain and suffering verdict, the defense argued, successfully, that $5,000,000 was unreasonably excessive and that there should be a drastic reduction. Both sides cited numerous cases to support either a reduction of the award or its affirmance; however, the appellate judges cited none.

Here are the main relevant cases, all except one involving pre-death pain and suffering:

  • Ramos v. Shah (2nd Dept. 2002) – $450,000 for several days in coma before death from cardiac arrest due to medical malpractice
  • Maracle v. Curcio (4th Dept. 2005) – $125,000 affirmed for 40 months of pain and suffering after fall left woman in vegetative state (she never communicated any indication of pain before death)
  • Weldon v. Beal (2nd Dept. 2000) – $5,000,000 for 26 year old woman with severe brain damage from medical malpractice in semi-comatose state for 12 years [not a death case – $2,000,000 past – 12 years, $3,000,000 future – 15 years]
  • Jump v. Facelle (2nd Dept. 2002) – $1,300,000 upheld for eight months of pre-death pain and suffering, including persistent abdominal infection, several surgeries and permanent colostomy and bed sores.
  • Walsh v. Staten Island Obstetrics & Gynecology Associates, P.C. (2nd Dept. 1993) – $650,000 affirmed for infant in vegetative state for eight years before death due to medical malpractice

Mrs. Schaffer’s husband, Paul Schaffer, was awarded $3,000,000 by the jury for his loss of services claim meant to compensate him for his economic loss (i.e., the monetary value of his wife’s services as a homemaker) and his loss of companionship or consortium.

The roles of women in the home and the workforce have changed in many ways over the years.

The law recognizes that physically uninjured spouses may suffer losses when their injured husbands or wives) can no longer assist with tasks in the home or provide the love and comfort previously enjoyed. When these factors are present, judges instruct jurors (PJI 2-315 and PJI 2-316) that they should render monetary verdicts in favor of the uninjured spouse.

The appellate court reduced Mr. Schaffer’s $3,000,000 jury award to $500,000 simply stating that there was “limited proof as to the value of the services rendered" by Mrs. Schaffer to her husband.

Our review of the underlying facts indicates that the appellate judges were influenced by the fact that plaintiff offered no evidence as to the value of his late wife’s homemaker services loss and simply argued that his $3,000,000 award should be upheld in full in light of a 40 year marriage and his dutiful daily visits until his wife’s death. The defense argued persuasively that Mr. Schaffer’s award should be reduced significantly in view of evidence that the marriage had long been strained with no sexual relations for the 10 year period before the coma.

Inside Information:

  • Nurain Batheja, M.D. the internist at Phelps Hospital against whom the jury assessed all of the liability, died in 1997, less than a year after Mrs. Schaffer lapsed into a coma. He was never deposed in the ensuing lawsuit.
  • Before trial, a $1,750,000 settlement was reached with defendants Phelps Hospital and one of its doctors and plaintiff dropped his claims against Stony Lodge and all other defendants except Dr. Batheja. Under New York’s General Obligations Law Section 15-108, therefore, the $3,000,000 appellate award will be reduced by the $1,750,000 pre-trial settlement to $1,250,000.
  • The appeals court also upheld $557,485 in medical expenses but there are Medicare and Medicaid liens related thereto