On September 1, 2010, while at work as a physical therapy assistant, Arlene Daniele, then 59-years-old, felt a twinge in the area of her lower back. The next day, she felt pain when attempting to walk. She went that day to see a pain management physician and was diagnosed with lumbar enthesopathy (inflammation) and myalgia (muscle pain) and given two trigger point injections (a steroid and an anti-inflammatory).

After a Labor Day weekend of pain, a friend took Ms. Daniele to Winthrop University Hospital in Mineola on September 7th where she was treated in the emergency room by a physician’s assistant who ordered an anti-inflammatory injection, pain medicine and an x-ray (which showed spondylolisthesis – forward displacement of a vertebra) before determining that there was no spinal emergency and discharging Ms. Daniele.

Unfortunately, her pain continued and on September 9, 2010, Ms. Daniele was taken by ambulance to another hospital, where an MRI of her thoracic and lumbar spine revealed multiple spinal epidural abscesses (from a bloodstream infection).

Ms. Daniele was transferred to Winthrop for emergency an emergency laminectomy – surgery to decompress the discs at T-6 to L-4.

A week later, she required more surgery – a drainage of a deep abscess on her cervicothoracic spine and a C7-T1 cervical discectomy and fusion.

Ms. Daniele remained hospitalized for two weeks following her second surgery and then spent five weeks in a rehabilitation facility until she was discharged to home.

In the ensuing medical malpractice lawsuit, a Nassau County jury found the pain management doctor was 15% at fault for his delay in following up on his patient after she called his practice on September 5th complaining of continued pain, a fever and difficulty moving around. The jury also found the physician’s assistant and Winthrop Hospital were 85% at fault for discharging Daniele to home without performing a sufficiently thorough examination and/or ordering an MRI and/or blood tests.

While it was conceded that plaintiff probably would have needed some surgery to address the abscesses that pre-existed her encounters with the defendants, she argued that had her condition been timely and properly diagnosed, she would not have suffered any deficits to her cervical spine, and she would have had a much better chance of recovering fully from the lumbar aspects of the abscess. The jury agreed and returned a verdict  awarding pain and suffering damages in the sum of $2,000,000 ($500,000 past – five years, $1,500,000 future – 20 years). The jury also awarded damages for plaintiff’s loss of earnings in the sum of $600,000 ($250,000 past, $350,000 future – seven years).

Defendants’ post-trial motion to set aside the verdict was denied. They then appealed arguing that rulings made during the trial were improper, unfair and so prejudicial that a new trial was required as to the issue of liability. Alternatively, they argued that the damages awards were excessive and should be reduced.

In Daniele v. Pain Management Center of Long Island (2d Dept. 2019), the appellate court agreed with the defendants  to the extent that it ordered (a) the jury verdict on liability was set aside and (b) the matter was remitted to the trial court for a new trial on the issue of liability. In light of its determination, the appellate court did not need to specifically address the damages issue.

As to damages. there was no dispute about the rule that where a defendant’s wrongful act did not cause a disease or condition, but only aggravated and increased the severity of a condition existing at the time of an injury, plaintiff may recover only for such increased or augmented sufferings as are the natural and proximate result of the defendant’s act.

The defendants argued that there was insufficient proof that plaintiff’s condition was exacerbated by a delay in surgeries to treat her pre-existing abscesses and that since she would have required the surgeries to treat the abscesses, the only injury attributable to them would be any pain and suffering directly flowing from the alleged treatment delay.

Plaintiff claimed she continued to have back and leg pain, her right foot remains numb and she is unsteady on her feet and can no longer work as a physical therapy assistant or perform activities such as hiking, dancing or engaging in sports. Her damages expert testified that she has permanent cervical-related weakness in her right arm and hand, impaired balance, impaired tandem gait, reflex asymmetry and an abnormal or dropped reflex in her ankle which related to damage in her lower spine. Plaintiff argued that but for the malpractice,  she would not have suffered any deficits to her cervical spine, and she would have had a much better chance of recovering fully from the lumbar aspects of the abscess.

The defendants argued that there was no evidence plaintiff’s condition was exacerbated by a delay in surgeries to treat her preexisting abscesses and in any event the pain and suffering award was excessive. They noted that plaintiff moved to Georgia in 2012 where, that year, her then treating physician found her gait to be normal and that in 2013 he found her neck to be supple and without pain on movement. Further, they noted that plaintiff took no pain medication, exercised regularly and was able to walk unassisted with shopping bags in her arms.

Inside Information:

  • Plaintiff had treated with the defendant pain management physician in November 2009 to address complaints of upper thoracic pain. She was then administered six to nine trigger point injections over the course of two months.
  • Two other private doctors were significantly involved in plaintiff’s treatment – the surgeons who operated on her spine. There was evidence that these doctors delayed in the diagnosis and treatment of plaintiff’s cervical abscesses but they were not named as defendants so their percentages of fault, if any, were not determined by the jury.

 

 

 

On January 17, 2015, Nicholas Avissato was stopped at a red light in Staten Island when his Nissan Maxima was struck in the rear by a Jeep Grand Cherokee driven by Andrew McDaniel. In Mr. Avissato’s ensuing lawsuit, his motion for summary judgment as to liability was granted and the matter proceeded to a trial on the issue of damages only.

The Richmond County jury returned a verdict finding that the accident caused plaintiff’s alleged shoulder and neck injuries and that the injuries met the permanent consequential limitation serious injury threshold set forth in Insurance Law Section 5102. The jury awarded plaintiff pain and suffering damages in the sum of $12,500 (all past – two years).

In Avissato v. McDaniel (2d Dept. 2019), the appellate court agreed with plaintiff that the pain and suffering damages verdict was:

  1. contrary to the weight of the evidence,
  2. inconsistent with the jury’s finding that plaintiff’s injuries are permanent, and
  3. inexplicably low

The court ordered that that case be remitted to the trial court for a new trial on the issue of pain and suffering damages.

Here are the injury details:

  • shoulder – partial thickness rotator cuff and biceps tendon tears
  • neck – disc bulges at C6-7

Plaintiff, a 39 year old Federal Express Company driver and route owner, testified that his shoulder pain is constant and debilitating leaving him unable to lift as many packages as he used to, resume recreational activities such as cardio kickboxing or pick up his young children without pain.

The defense argued at trial and on appeal that the accident was merely a “tap in the rear” causing minimal damage to the cars and noted that plaintiff declined medical attention at the scene, instead driving his car on to visit his grandmother at a hospital (where he did not mention his accident or seek any medical attention). The defense produced an expert radiologist who reviewed MRI reports from a week after the accident and argued that plaintiff’s injuries were not caused by the accident but instead were degenerative due to a lifestyle that had included kickboxing and frequent lifting of packages on his job.

Plaintiff testified that he first began to feel pain from the accident the next morning but conceded that he did not seek medical attention for his injuries until three days later. He contended that the MRI reports from within a week of the accident clearly disclosed traumatic injuries from the accident and that he’d never had symptoms or sought any medical treatment for these injuries before the accident.

Plaintiff’s pain management physician testified that his shoulder (with a 10% loss of internal rotation) and neck injuries and pain were caused by the accident, they will worsen and they are permanent. The doctor administered cervical steroid injections and said that plaintiff may require more in the future as well as arthroscopic surgery for his shoulder.

Inside Information:

  • In his closing argument, plaintiff’s attorney asked the jury to award $50,000 for past pain and suffering damages plus $76,000 for the future.
  • Plaintiff missed only about thee days of work and made no lost earnings claim.

On May 20, 2008, Alexander Nayberg was stopped at a red light in Garden City when two other cars collided in the intersection and one of them struck Mr. Nayberg’s car in the rear.

In the ensuing litigation, a Nassau County jury found that the two colliding drivers were each 50% at fault for the accident and Mr. Nayberg’s injuries and they awarded pain and suffering damages in the sum of $1,600,000 ($600,000 past – six  years, $1,000,000 future – 20 years).

In Nayberg v. Nassau County (2d Dept. 2017), the appellate court affirmed the damages awards.

Here are the injury details:

  • herniated disc at C6-7 requiring cervical discectomy and fusion surgery three years later with the insertion of a plate and four titanium screws

  • additional cervical fusion surgery required in future at levels(s) above and/or below C6-7
  • fractured teeth and bridge requiring seven extensive dental  procedures including extractions, implants and bone grafts

Plaintiff, 54 years old when the accident occurred, had been employed at Bloomingdale’s earning $70,000 a year as an operating director in its restaurant division for seven years until a few months before when he was laid off in an economic downturn. He then formed his own construction company and  one week before the accident, he was offered his first job but he was physically unable to take it. When this case was tried, plaintiff was still in pain, unable to help his wife with household chores, pick up anything more than 10 pounds or engage in construction work.

The jury also awarded plaintiff, and the appellate court affirmed, damages  for lost earnings in the sum of $773,751 ($447,858 past – six years, $325,893 future – 16 1/2 years). The defense argued that the entire lost earnings award was speculative and should be vacated because it was based upon plaintiff’s expected lost income from a start-up business. The appellate court rejected the argument noting that plaintiff established this claim with reasonable certainty through his own testimony and that of an expert economist and that the defendants failed to submit any evidence in opposition.

The jury also awarded damages for future medical expenses (for additional spinal surgery) in the sum of $200,000 (10 years) and future dental expenses in the sum of $25,000 (two years).

Inside Information:

  • There was no award for loss of consortium damages claimed by Mr. Nayberg’s wife.

On April 20, 2011, Thomas Tornatore, then 51 years old, was wrestling with his nephew when he sustained an injury to the base of his neck. Five days later, Mr. Tornatore sought treatment from a chiropractor. After his fourth and final treatment, which included chiropractic manipulations, he had severe pain in his neck that radiated down his arm. Within a week, he was diagnosed by an orthopedic surgeon and told he had a herniated disc and needed spinal surgery.

In his ensuing medical malpractice lawsuit against the chiropractor, Mr. Tornatore claimed that the manipulations were inappropriate because plaintiff suffered from pre-existing conditions, including a degenerative cervical spine with spinal stenosis. The defense argued that (a) plaintiff was properly treated and (b) the treatment did not injure plaintiff or worsen his pre-existing condition in view of the testimony of the defendant’s medical expert contending that spinal MRI scans from before and after the treatment did not show any significant change.

The Onondoga County jury agreed with plaintiff finding the defendant negligent and awarding pain and suffering damages in the sum of $500,000 ($200,000 past – four and a half years, $300,000 future – 20 years) and future medical and life care expenses in the sum of $903,407 (20 years).

Defendant appealed, arguing mainly that the future medical and life care expenses award was excessive and, in any event, it should be vacated because the testimony of plaintiff’s life care expert was wrongfully admitted.

In Tornatore v. Cohen (4th Dept. 2018), defendant’s arguments were rejected and the judgment was affirmed in all respects.

The appellate court’s opinion does not discuss plaintiff’s injuries. Here are the injury details:

  • herniated disc at C5-6 with large sequestered fragment compressing nerve, caused by defendant’s aggravation of plaintiff’s pre-existing degenerative cervical spine

  • decompressive surgery with fusion of cervical spine at C4-5, C5-6 and C6-7
  • surgical revision of hypertonic scars from first surgery
  • permanent residual neck pain and stiffness with limitation of range of motion
  • difficulty sleeping and driving, unable to lift grandchildren

The award for future medical and life care expenses was based upon the testimony of plaintiff’s vocational rehabilitation specialist and life care planner. It included $474,000 for 20 years of medications (including Gabapentin, Tramadol and Hydrocodone) and $268,000 for pain management (including epidural injections 3-4 times a year at a cost of more than $3,000 each). The jury rejected parts of plaintiff’s claims for future expenses and awarded nothing at all for a spinal cord stimulator and surgery to implant it.

Inside Information:

  • Plaintiff’s witnesses included her orthopedic surgeon and internists in addition to her expert chiropractor and life care planner. The defense called only an expert neuroradiologist.
  • Plaintiff’s criminal history that defendant was precluded from using related to two matters. One was a 1979 youthful offender adjudication on sodomy charges following a consensual relationship with another then under-18 year old boy. The other was a 1997 charge of soliciting a minor for sex in which plaintiff was found guilty by a jury but adjudication of guilt was withheld by the judge and he was given probation.
  • The prior MRI scan reviewed by the defendant’s medical expert was from 2002 after plaintiff sustained a work-related injury. He was asymptomatic and did not undergo any treatment between 2002 and the current incident.

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

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

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

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

Here are the injury details:

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

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

Inside Information:

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

On December 17, 2011, Ebony Stanford was a rear seat passenger in a taxicab that was involved in a crash with another vehicle in Manhattan on the FDR Drive near the 53rd Street exit.

Ms. Stanford, then a 33 year old security officer at Harlem Hospital residing in the Bronx, sued both drivers seeking an award of pain and suffering damages for injuries to her cervical and lumbar spine.

In 2015, plaintiff’s motion for summary judgment was granted on the issue of serious injury based upon the so-called 90/180 category under Insurance Law Section 5102. Accordingly, at the trial in 2016, the jury was instructed that “the court has already determined that plaintiff sustained a non-permanent medically determined injury that prevented [her] from performing her usual and customary activities for 90 out of the 180 days immediately after the accident.”

The Bronx jury returned a verdict finding the two drivers negligent, apportioning their respective shares of fault and awarding plaintiff $14,400 for her past loss of earnings.

The jury awarded nothing at all for plaintiff’s pain and suffering, a determination that was upheld on appeal in Stanford v. Rideway Corp. (1st Dept. 2018).

As indicated in the appellate court decision, the trial judge found that “plaintiff’s evidence was not compelling” and the jury found that plaintiff did not sustain either (a) a permanent consequential limitation of use of a body organ or member, or (b) a significant limitation of use of a body function or system (two of the serious injury criteria under the statute).

Both plaintiff’s pre-trial motion for summary judgment as to the 90/180 category and the jury’s award of damages for plaintiff’s wage loss were based on plaintiff’s claim that she was entirely unable to work for about four and a half months immediately following the accident.

Here are the injury details:

  • immediate back and neck pain from whiplash
  • ambulance transport to hospital on stretcher with neck brace; treated and released to home after five hours
  • bulging discs at L4-5 and L5-S1
  • three spinal manipulations under anesthesia
  • chiropractic and physical therapy treatment at an outpatient rehabilitation facility for the next four months
  • continuing pain leaving plaintiff unable to lift her six year old daughter, carry heavy groceries or walk fast

The defendants argued that the disc bulges were minimal and degenerative and that there was no evidence of any traumatic injury to the cervical spine. Furthermore, the defendants’ expert orthopedic surgeon (a) diagnosed plaintiff with morbid obesity (she was 5 feet 4 inches tall and weighed 230 pounds at the time) and (b) examined plaintiff and opined that her neck and back were normal and she had no related disabilities.

Plaintiff’s treating orthopedic surgeon opined before trial that she had significant range of motion limitations and permanent lumbar and cervical spine injuries; however, her chiropractor was the only health care provider who testified at trial for her and the jury rejected plaintiff’s position that her injuries met the significant limitation and permanent consequential limitation categories under the statute.

Clearly, this was a case of battling experts and the jurors chose the one they found credible.

 

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

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

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

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

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

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

 

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

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

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

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

Inside Information:

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

On 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.

On June 2, 2010, Rosemary McKnight was a passenger in a city bus which rear-ended a tanker truck on Nostrand Avenue in Brooklyn.

TA bus Nostrand Ave.

As a result, Ms. McKnight, then 48 years old, injured her neck and both knees. In her ensuing lawsuit against the transit authority and its driver, Ms. McKnight’s motion for summary judgment as to liability was granted in April 2011 and the case proceeded to a trial on damages only. On July 18, 2013, the Kings County jury awarded her total damages in the sum of $2,270,000 as follows (and as set forth in the verdict sheet):

  1. $900,000 for pain and suffering ($150,000 past – three years, $750,000 future – 25 years);
  2. $480,000 for lost wages ($80,000 past, $400,000 future – 11 years); and,
  3. $890,000 for medical expenses ($190,000 past, $700,000 future – 25 years).

The defendants appealed arguing that the awards for lost wages were excessive because, before the bus crash, plaintiff had been receiving Workers Compensation and Social Security Disability (“SSD”) benefits from a work-related accident eight years earlier. They also argued that the medical expense awards should be reduced because some of plaintiff’s bills were paid by no fault insurance. There was no challenge to the pain and suffering awards.

In McKnight v. New York City Transit Authority (2d Dept. 2017), the appellate court agreed with the defense to the extent that it ordered a $150,470 reduction of the lost wages awards to take into account the $205 per week plaintiff had received in Workers Compensation benefits since the new accident and that she would receive in the eleven years following the verdict.

comp

Under CPLR 4545, in personal injury lawsuits, the judge may reduce the amount of a plaintiff’s award if he finds that any element of economic loss encompassed in the award will be replaced, in whole or in part, from a collateral source. In this case, as contemplated by the statute, the judge conducted a post-trial collateral source hearing on August 25, 2014 at which the defendants offered evidence that plaintiff’s awards for lost wages and medical expenses should be offset by the Workers Compensation and SSD benefits she had been receiving and which defendants argued she would continue to receive in the future.

The trial judge declined to make any offset; however, the appellate judges disagreed and ordered the $150,470 reduction mentioned above to take into account the Workers Compensation benefits plaintiff had been receiving and, the appellate judges concluded, she would with reasonable certainty continue to receive for the eleven year period of her lost wages jury award.

Ms. McKnight’s earlier accident occurred when she tried to lift a heavy patient who fell while she was a nursing assistant at a senior care facility. As a result, she sustained injuries to her right shoulder and lower back, underwent rotator cuff and lumbar fusion surgeries, was unable to continue that job after about three years of light duty accommodation and was awarded Workers Compensation and SSD benefits.

At the time of her 2010 bus accident, plaintiff was preparing to re-enter the work force, having completed schooling to become a certified medical assistant. Her injuries in the new accident included herniated discs at C4-7, a torn anterior cruciate ligament in one knee and a torn meniscus in the other and required her to undergo cervical fusion and bilateral arthroscopic knee surgeries. She contended at trial that the new accident and injuries prevented her from engaging in any new employment.

cervical fusion3

Inside Information:

  • On the day of the bus accident, Ms. McKnight was on her way to an EKG test that was one of the last things she had to do to become and accept a job as a certified medical assistant.
  • Plaintiff was receiving SSD benefits of $1,080 per month for herself and $470 per month for her twin children (the kids’ benefit ended a month before the collateral source hearing). Thus, defendants sought a $244,300 offset to the lost wages awards. As set forth in the appellate court decision, the proof was insufficient to justify an offset for the SSD benefits. The court also held that the evidence was insufficient to justify any offset for no fault insurance benefits.

 

On May 26, 2010 Marshall Starkman was sunbathing on a beach chair when a City of Long Beach police officer struck him while driving his SUV patrol car. Mr. Starkman, then 43 years old, was thrown off his chair, flipped onto his stomach and then the vehicle ran over his back.

Photo of Beach from Newsday article

In the ensuing lawsuit against the City of Long Beach and the police officer, plaintiff was granted summary judgment as to liability and the matter proceeded to a trial on damages only.

After a month long trial with 24 witnesses, on February 14, 2014, a Nassau County jury awarded plaintiff pain and suffering damages in the sum of $1,250,000 ($500,000 past – 4 1/2 years, $750,000 future – 30 years). Plaintiff challenged the award as inadequate but the trial judge denied the post-trial motion.

In Starkman v. City of Long Beach (2d Dept. 2017), the appellate court agreed with plaintiff that the award was inadequate and increased the pain and suffering damages to $2,250,000 ($750,000 past, $1,500,000 future).

As set forth in the appellate court decision, plaintiff sustained fractures of transverse processes of three vertebrae and underwent two spinal surgeries.

spine anatomy 2

Here are the injury details:

  • found face down in sand with tire tracks on back; taken by helicopter to hospital; diagnosed with fractures of C-6, C-7 and T-1 transverse processes and three ribs as well as atrial fibrillation and heart contusions; admitted for three days
  • herniated cervical discs and radiculopathy treated initially with physical therapy and pain management (including injections and medication)
  • surgery #1 on 10/5/11 – three level anterior cervical fusion at C4-5, C5-6 and C6-7 with decompression, bone graft and insertion of plate and eight screws
  • non-union of each of the three levels operated on
  • surgery #2 on 2/8/13 – posterior spinal fusion of the C4-5 and C6-7 levels with additional screws
  • heart contusion, premature contractions, ventricular atrial fibrillation and, on 8/2/12, ablation surgery; 70% chance of heart attack (compared to 15% for an otherwise healthy man)
  • permanent 40% loss of range of motion of neck with chronic pain requiring extensive medication
  • post-traumatic stress disorder (PTSD), depression, anxiety and sexual dysfunction
  • unable to return to work, drive or engage in any athletic activities; spends most days at home sleeping, watching television or in some other sedentary activity

The defendants argued that according to imaging studies, plaintiff had long-standing degenerative cervical disc disease, did not need the surgeries he underwent, did not have PTSD and could return to work.

The jury also awarded plaintiff $300,000 for medical expenses ($100,000 past, $200,000 future – 18 years) and $650,000 for loss of earnings ($200,000 past, $450,000 future – 14 years).

Plaintiff had been employed as a store manager at T-Mobile earning about $79,000 a year. He never returned to work and his expert vocational rehabilitation counselor, Charles Kincaid, Ph.D. opined that he never would. To the contrary, defendants’ expert vocational rehabilitation counselor, Beth Greenbaum, Ph.D., opined that there are several jobs, such as sales manager and human resource manager, that plaintiff could perform and which would pay him more than $100,000 a year.

Inside Information:

  • In his summation, defendants’ attorney did not recommend a damages amount but he did suggest that plaintiff was exaggerating his injuries and disabilities; plaintiff’s attorney asked the jury to award $11,500,000 for pain and suffering damages.
  • The judge charged the jury that according to statistical tables, plaintiff’s life expectancy was 30 years and his work life expectancy 22 years. While the pain and suffering award was for 30 years, the future loss of earnings award was for only 14 years (and the future medical expenses award was for 18 years).
  • Mr. Starkman loved to work and had never missed a single day of work in his life.
  • There was no spousal loss of consortium claim. Plaintiff and his wife had been together since 1991 and married in 1997. By 1999, though, they entered into a separation agreement and separated for a year. They were divorced in 2009 but remarried after the accident.