On May 7, 2005 Sean Dernago was driving his employer’s box truck on the George Washington Bridge when, after weaving in and out of several lanes in fairly heavy traffic, he rear ended a pick-up truck and launched it into a minivan driven by Frank Chiara. His wife Venetia Chiara was a front seat passenger and their triplet eight year boys were all rear seat passengers. Mrs. Chiara and one of her sons, Nicholas, were injured.

Scene of the Accident

Dernago was employed by Connecticut Shellfish Company and had been making deliveries to restaurants that day.  Towards the end of his route, Dernago stopped at Hooters in Paramus where he drank about 10 beers. He then headed to his last stop in City Island but before he got there he caused the crash with the Chiara family.

Chiara was arrested at the scene and charged with driving while intoxicated. He pled guilty a month later and went to jail for four months.

The Bar at Hooters in Paramus, NJ
The Bar at Hooters in Paramus, NJ

In the ensuing lawsuit, defense lawyers conceded that Dernago was intoxicated but suggested that the pick-up truck struck plaintiffs vehicle before any impact from the defendant. Dernago did not testify in court but in his deposition transcript he said he heard only one impact and the jurors made short shrift of the defense argument and returned a verdict of full liability against the defendant.

In the damages portion of the bifurcated trial the defendants argued that Mrs. Chiara’s claimed neck injury did not meet the serious injury threshold under Insurance Law Section 5102(d); however, on September 21, 2011, the Nassau County jurors disagreed and returned a verdict for pain and suffering in the sum of $160,000 ($90,000 past – six years, $70,000 future – 28 years). They also awarded punitive damages in the sum of $70,000.

In Chiara v. Dernago (2d Dept. 2015), the threshold determination and the damages awards have been affirmed.

As indicated in the court’s decision, Mrs. Chiara, a homemaker then 47 years old, sustained injuries to her cervical spine that caused disc herniations and left her with significantly decreased range of motion.

Here are the injury details:

  • herniated discs at C4-5 and C5-6 with radiculopathy
  • bulging discs at C3-4 and C6-7
  • physical therapy and chiropractic treatment (about 135 visits) continuing to the date of trial
  • trigger point injections
  • continuing need for pain medication
  • permanent cervical spine range of motion deficit of almost 50%

Cervical-Disc-Herniation2

Although plaintiff did not complain of neck pain at the scene or at the emergency room later that night, she shortly thereafter developed significant spasms and neck pain that she testified continued to the date of trial and limited her abilities to cook, work at a computer, garden, concentrate and play with her children. She admitted, though, that “there’s nothing I cannot do at all.”

Plaintiff’s injuries and treatment were testified to by her neurologist James Liguori M.D.; whereas defendants offered the testimony of expert radiologist A. Robert Tantleff, M.D. who reviewed plaintiff’s MRI and said that there was no nerve root compression,  plaintiff’s condition was completely related to degenerative disc disease and she had not sustained an acute herniation.

The award of punitive damages was based upon plaintiff’s claim that not only was Dernago a drunk driver with a blood alcohol test more than two times the legal limit but also that his conduct was so outrageous that it amounted to wanton and reckless behavior that should be punished. The defense argued that drunk driving alone will not as a matter of law support a punitive damage claim (that is correct) and that there was little or no evidence to meet the higher burden needed for punitive damages, especially in view of the fact that Mr. Dernago was pulled over by a police officer for failure to signal a lane change about 10-15 minutes before the crash,  was given a field sobriety test and let go without any tickets.

Inside Information:

  • The claim by plaintiff’s son Nicholas was settled during trial for the sum of $25,000. His injury was minor, essentially some neck spasms treated with physical therapy.
  • In summations, plaintiff’s attorney asked the jury to award pain and suffering damages in the sum of $630,000 ($350,000 past, $280,000 future). Defense counsel argued that plaintiff was entitled to no damage award at all because her injuries did not meet the statutory serious injury threshold.
  • Mrs. Chiara’s settlement demand had been $150,000 against an offer of $60,000.

On November 9, 2009 Vincent Taurone was a front seat passenger in a minivan on the Saw Mill River Parkway in Chappaqua. After his vehicle stopped because of a deer carcass in the roadway, another car smashed into the rear of the minivan propelling it 35 feet forward.

Saw Mill River Parkway northbound at Readers Digest Road (exit 33) in Chappaqua. The Saw Mill indeed has a few traffic signals, as does quite a few other New York state parkways. If you look closer, these signals have backplates, which doesn't appear too often in the state.
Saw Mill River Parkway northbound at Readers Digest Road (exit 33) in Chappaqua.

Mr. Taurone, then 51 years old, had sustained prior traumatic incidents in which he’d injured his neck and, as a result, just 28 days before this accident he underwent major surgery – an anterior cervical discectomy and fusion at C5-6 and C6-7 with cortical bone implants and the insertion of a titanium plate and seven screws.

C5-6 and C6-7 Fusion

In Mr. Taurone’s ensuing lawsuit against the owner and operator of the other vehicle, defendants conceded liability and the trial was limited to the amount of damages only.

  • Plaintiff contended that the car crash caused significant new and aggravated injuries to his spine.
  • Defendants argued that (a) plaintiff’s new or aggravated injuries were not serious enough to meet the threshold under Insurance Law Section 5102 and (b) that the new/aggravated injuries were solely the result of plaintiff’s prior accidents or a fall out of bed that occurred eight days after the crash.

On May 31, 2013, the Westchester county jury found for the plaintiff and awarded him pain and suffering damages in the sum of $1,000,000 ($400,000 past –  3 1/2 years, $600,000 future – 15 years). Defendants appealed urging that the statutory threshold had not been met and therefore the judgment should be vacated. In Giardina v. Barasch (2d Dept. 2015), the appellate court rejected the defendants’ contentions and affirmed the judgment.

The court’s decision focused on the issue of defendants’ in-trial application for an adjournment so that a second physician could be brought in to rebut the testimony of plaintiff’s physicians. The trial judge initially granted the request but when the defense expert became unavailable the judge denied a second adjournment request. This, the appellate court ruled, was well within the trial judge’s discretion and not a reason to overturn the judgment.

The damages issues are nowhere addressed in the appellate court decision except to the extent of a statement that deemed defendants’ remaining contention “without merit.”

Following the accident, Mr. Taurone was admitted to the hospital for six days where he was immediately seen by the neurosurgeon, Thomas Lee, M.D., who had operated on him 28 days before. Dr. Lee testified that the car accident caused further injury to Mr. Taurone’s C-6 vertebrae and that as a result the plate and screw system he had installed weeks before had “pulled out on the bottom” and dislodged thus requiring new surgery on January 6, 2010:  removal of the prior instrumentation and a revision anterior cervical interbody fusion at C5-6 and C6-7.

Unfortunately, plaintiff’s spine deteriorated further – a result not unusual with the type of revision surgery he underwent – and a third surgery was required on August 21, 2012 – a complex posterior laminectomy at C4-5 and C5-6. This was done by Reza Yassari, M.D., who testified  that plaintiff had severe myelopathy and that his radiating pain was so bad that he couldn’t use one hand. The surgery he performed would not, he testified, stop the progressive deterioration of plaintiff’s spine but would slow it down.

 The defense case rested upon the testimony of radiologist David Fisher, M.D. who opined that there was neither a new nor an exacerbated injury to plaintiff’s spine as a result of the November 9, 2009 accident and in particular that the accident did not dislodge the previously implanted plate and screws. In summation, defendants’ attorney contended: “This is a moderate accident with someone who had a condition that existed before, existed at the time of the accident and went on and probably will go on into the future.”

Inside Information:

  • Defendants did not challenge the amount of damages on appeal except to the extent they argued (unsuccessfully) that there was insufficient proof to meet the statutory threshold under the Insurance Law.
  • Mr. Taurone suffered a heart attack and died on February 14, 2015 at the age of 56 years (the caption of the lawsuit was then changed to reflect the name of the executor of his estate).
  • Until 2006, Mr. Taurone worked as a limousine driver and a security guard. The prior injuries that necessitated Mr. Taurone’s surgery before this car accident were a 1989 motor vehicle incident and a 2006 assault. In each, he sustained neck injuries and lost time from work but neither required surgery until 2009.
  • In the 1989 accident, Mr. Taurone was working as a driver and bodyguard for the rock band Metallica. He and the band’s drummer got out of the limousine after the accident and they were in the roadway when another vehicle hit Mr. Taurone as he pushed the drummer away. Metallica
  • The jury also awarded plaintiff lost earnings damages in the sum of $275,000 ($95,000 past, $180,000 future – six years).

 

 

 

On February 6, 2008, livery taxicab driver Alfonso Robles was involved in a crash with another car in Port Chester. He ended up in the hospital emergency room and in his ensuing lawsuit commenced on May 21, 2009 against the other driver and vehicle owner, on January 24, 2012, a Westchester County jury apportioned liability at 65% on the defendant driver and 35% on Robles.

The same jury then considered damages in a separate trial. They found that plaintiff’s injuries merited a pain and suffering award of $800,000 ($400,000 past – four years, $400,000 future – 37 years). Plaintiff’s motion seeking an increase in damages was denied by the trial judge in a post-trial decision on July 20, 2012.

On appeal in Robles v. Polytemp, Inc. (2nd Dept. 2015), the award has been affirmed.

As set forth in the appellate court decision, plaintiff, 37 years old at the time of his accident, sustained disc herniations requiring both cervical and lumbar spinal fusion surgeries.

Cervical fusion post-op image:

cervical fusion4

Here are the injury details:

  • Herniated discs at C4-5, C5-6 and C6-7 with radiculopathy
  • Surgery #1 on 3/31/09: two level cervical discectomy and fusion with six screws and a titanium plate inserted
  • Herniated discs at L4-5 and L5-S1 with radiculopathy
  • Surgery #2 on 8/18/09: two level lumbar fusion and laminectomy at L4-5 and L5-S1 with six screws and and a rod screw construct
  • Continuing and permanent spinal pain and radiculopathy requiring narcotic pain medication and leaving plaintiff with weakness of both arms and legs
  • Unable to work as a vehicle driver, unable to bend or carry
  • Unable to return at all to activities previously enjoyed such as dancing, running and soccer

Cervical radiculopathy – pain and other symptoms from the irritation of cervical spine nerves – can affect various parts of the neck, shoulders and upper extremities:

cervical radiculopathy

The jury determined, as set forth in its verdict sheet, that plaintiff failed to use an available seatbelt and that his recovery should therefore be reduced by $200,000. New York law that provides that non-use of an available seat belt, and expert testimony in regard thereto, is a factor which the jury may consider, in light of all the other facts received in evidence, in arriving at its determination as to whether the plaintiff has exercised due care, not only to avoid injury to himself, but to mitigate any injury he would likely sustain. Plaintiff argued successfully on appeal that the $200,000 reduction was improper because there was insufficient (expert) proof that plaintiff’s use of a seatbelt would have mitigated his damages.

Inside Information:

  • In closing arguments, plaintiff’s counsel  asked the jurors to award his client $5,000,000 for pain and suffering. Defense counsel argued that plaintiff should be awarded nothing at all because he had pre-existing degenerative discs in his spine, the impact between the cars was minimal and could not have caused the injuries claimed and that any injuries at all were due to non-use of a seatbelt.
  • It appears that the jurors discounted plaintiff’s second surgery (lumbar fusion) and agreed with the testimony of defense expert orthopedic surgeon Robert Israel, M.D., who stated that there was no casual connection between the accident and that surgery and that plaintiff could return to work without restrictions. Spinal surgeon Sebastian Lattuga, M.D., testified for the plaintiff.
  • The trial was hard fought on both sides with veteran trial lawyers Nick Gjelaj for the plaintiff and Sim R. Shapiro for the defendants.

 

 

At 5 p.m. on Thursday January 11, 2007, Christopher Cicola was stopped for a red light on Route 112 in Medford when a Suffolk County Sheriff’s car struck his 2004 Honda in the rear.

The impact jolted the seat-belted Mr. Cicola forward and back but he was able to get out of his car on his own, declined medical attention at the scene and drove his car home.

At home that night, Mr. Cicola, then 35 years old, had throbbing pain in his neck. He treated himself with ice and the next day called an orthopedic surgeon who was able to see him three days later, thus beginning a course of treatment that included various doctors, cortisone shots, radiological studies and physical therapy and culminated in two major surgical procedures – one almost two years later and a second a year after that.

A CT scan showing the spine after the types of surgery Mr. Cicola underwent – a two level fusion at C4-6:

On February 8, 2007, Mr. Cicola filed a notice of claim (a condition precedent to a lawsuit against a municipality) and on April 10, 2007 he filed a summons and complaint claiming he’d sustained serious injuries in the accident and seeking pain and suffering damages.

On  September 17, 2007,  an order granting summary judgment on liability was issued in plaintiff’s favor and the matter proceeded to a trial on damages only starting on April 17, 2012.

After six days of trial, the Suffolk County jury returned a verdict for pain and suffering damages in the sum of $1,025,000 ($325,000 past – five years, $700,000 future – 35 years).

On appeal in Cicola v. County of Suffolk (2d Dept. 2014), the pain and suffering awards were deemed excessive and reduced to $250,000 ($150,000 past, $100,000 future).

As indicated in the court’s decision, Mr. Cicola underwent two spinal fusion surgeries to repair herniated discs:

  1. on November 18, 2008, an anterior cervical diskectomy and fusion at C4-5 (with a plate and bone graft) and
  2. on October 16, 2009, another diskectomy and fusion, this time at C5-6 (with two plates and a bone graft, after removing the previously inserted plate)

major issue at trial and then on appeal was whether and if so to what extent Mr. Cicola had pre-existing degenerative conditions in his neck.

Plaintiff argued that whatever disc or other degeneration in his cervical spine that may have existed before the car accident was minimal and played no role in his case because:

  • everyone has some normal, age-related degeneration and whatever such condition plaintiff had was minimal,
  • his treating orthopedic surgeon Paul Alongi, M.D. testified that shortly after the accident diagnostic films did not show worn out cervical discs (no “bone on bone”) or any big bony spurs,
  • there were no symptoms of pain before the accident, and
  • Mr. Cicola had never before treated with any healthcare provider for any cervical complaints

The defendants argued that plaintiff’s herniated discs were the result of degenerative disc disease that pre-existed this accident and that whatever injuries plaintiff sustained and treatment he underwent after his accident (i.e., the two cervical fusions) were directly related to degeneration because:

  • x-rays taken four days after the accident showed disc space narrowing with loss of fluid, something the defendants’ expert orthopedic surgeon Arthur Bernhang, M.D. opined usually appears in older persons and is indicative of degeneration,
  • the x-rays also showed (and plaintiff’s surgeon later removed) osteophytes (bony spurs) at C4-5, a condition the surgeon conceded was degenerative
  • plaintiff, who stood five feet 11 inches tall and weighed 210 pounds, lifted weights for 15 years often six days a week, achieving a “muscle bound” physique by “abuse of his own body,” and
  • the impact between the cars was minimal and plaintiff declined medical attention at the scene stating he felt fine

New York law provides that a plaintiff may not recover damages for an aggravation of a pre-existing condition unless it is specifically pleaded in the complaint or bill of particulars. It was not done so in this case. In his charge, the trial judge instructed the jury: “You may only award damages for injuries caused by the accident and not for any previous existing conditions.”

At the time of trial, plaintiff admitted that he’d obtained some relief following his surgeries but testified that he still experienced daily neck pain, was under the care of his surgeon every three months and took Lyrcia to manage his symptoms.  Furthermore, while he could engage in moderate exercise (including lifting weights on machines) but could no longer hike, jog or engage in any sports claiming that “physical activity is non-existent.”

Inside Information:

  • In his opening statement,  plaintiff’s attorney withdrew previously asserted right shoulder impingement and tendinosis injury claims. Defense counsel stated in his opening that the withdrawal was because of the expected testimony of a biomechanical engineer to the effect that it was “impossible” for plaintiff to have sustained such an injury given the physical dynamics of this accident.
  • There was no loss of earnings claim. Plaintiff had been a mortgage broker at the time of his accident, was out of work for one week, lost his job for non-accident related reasons and 18 months later became employed again, this time doing accounting work.
  • Plaintiff’s pre-trial settlement demand was $950,000. Defendant made no offer at all. Plaintiff’s counsel asked the jury to award $750,000 for past pain and suffering plus $800,000 for the future. Defense counsel asked the jury to award no damages at all.

 

On June 25, 2007, at about 8:30 a.m., Melody Sweet was driving her 1986 Mustang convertible on Innis Avenue in Poughkeepsie at a speed of 25-30 miles per hour when Christopher Rios pulled his sport utility vehicle out of a parking space on the side of the road and collided with her vehicle.

A red 1986 Mustang convertible (Ms. Sweet’s was pink and was totaled in the accident):

The crash caused neck, back, shoulder and knee injuries to the then 47 year old Ms. Sweet. She was transported by ambulance to the local hospital where she was treated for low back pain and a contusion to her right shin and tibia. Twelve days later, Ms. Sweet began an extensive course of medical treatment that included two surgical procedures.

In her ensuing lawsuit, on April 13, 2011, a Dutchess County jury found Mr. Rios fully at fault and awarded Ms. Sweet pain and suffering damages in the sum of $720,000 ($100,000 past – four years, $620,000 future – 31 years).

The defendant appealed, claiming that the amount awarded for future damages was excessive. The appellate court agreed, in Sweet v. Rios (2d Dept. 2014), and ordered a reduction of the future damage award from $620,000 to $465,000. The court thus determined that the proper total pain and suffering award for plaintiff is $565,000 ($100,000 past, $465,000 future).

The court’s decision mentions some of the injuries; however, here are the injury details:

  • Neck and Back – Cervical disc protrusions at C4-5 and C5-6 and lumbar disc bulges at L4 and L5-S1 that required four trigger point injections, extensive physical therapy, pain management and chiropractic treatment and left plaintiff with significant range of motion deficits that her doctors opined are permanent and, as to her back, Ms. Sweet said left her with radiating and stabbing pain that continues to get worse. One of her doctors opined that she will need microdiscectomy lumbar surgery in the future.
  • Left Shoulder – Arthroscopic surgery on 11/1/07 to repair the superior labrum, anterior and interior capsulorraphies, glenoid chondroplasty, rotator cuff debridement, partial synovectomy, removal of loose bodies, acromioplasty and distal clavicle resection. Despite the surgery, and a series of three trigger point injections thereafter, Ms. Sweet testified she cannot lift her left arm above her shoulder and has continuing pain and stiffness. Her doctors testified she has significant range of motion deficits, her injury is permanent and “there is no doubt” she will require major reconstructive surgery or replacement.
  • Right Knee – Arthroscopic surgery on 3/20/08 to repair or trim back meniscal tears. The surgery was successful, plaintiff regained full range of motion in her knee, sharp pain and snapping resolved and her attorneys on appeal essentially abandoned this aspect of her claim.
  • Work Loss – Ms. Sweet had been a waitress for 30 years in and around the Poughkeepsie area. She missed two days of work right after the accident before returning on limited duty for the next few months. Thereafter, though, she never returned and claimed she is permanently unable to do so because of the injuries from the accident.
  • Activities of Daily Living – Plaintiff testified that she can no longer enjoy her recreational activities such as hiking, walking in the woods and ice skating. Also, she said she was socially isolated because her social life had revolved around her work and she lost her friends.

The defendant’s expert orthopedic surgeon opined that plaintiff sustained no injury to her neck, the injury to her back was merely a sprain with temporary aggravation of degenerative disc disease, her shoulder conditions were pre-existing and not caused by the accident and her knee injury was not caused by the accident. He noted that significant obesity (plaintiff was five feet seven inches tall and weighed 260 pounds at the time) was a more likely cause of many of plaintiff’s complaints.

Inside Information:

  • Prior to the accident, Ms. Sweet had never sought medical treatment nor had she experienced any medical problems with her neck, back, left shoulder or right knee.
  • Two years after this accident, Ms. Sweet was involved in a slip and fall accident at a grocery store in which she hit her face, cheek bone and jaw causing broken dentures and a ripped off toenail.
  • Ms. Sweet was determined to be disabled by the Social Security Administration and at trial was collecting Social Security Disability (“SSD”) benefits of $681 per month.
  • The jury also awarded (and the appellate court sustained) past and future lost earnings in the sum of $234,000 ($76,000 past, $158,000 future –  7.9 years).
  • In denying a motion to set aside the jury verdict, the trial judge stated: “This was somewhat of an unusual case by virtue of the fact that plaintiff’s pleasures in life to a great degree revolve around her work which she could no longer perform…. In many ways, her pleasures in life revolved around being at the diner with her friends …. In effect, her social life came to a halt.”
  • Plaintiff’s pre-trial settlement demand was $750,000; defendant’s offer was $60,000.

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

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

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

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

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

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

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

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

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

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

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

Inside Information:

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

 

Agnes McDonald, a 55 year old elevator operator,  was a rear seat passenger in a two car accident in Manhattan on January 20, 2005.

She was injured but did not seek medical treatment until four days later when she saw a physician at a local medical clinic, complaining of a stiff neck and a burning sensation down her neck and shoulders to her fingers. She underwent physical therapy, acupuncture and chiropractic care over the next three years and struggled with severe neck pain.

Then, an orthopedic surgeon recommended an MRI which showed a disc herniation at C4-5 with nerve irritation that the doctor found to be the significant cause of Ms. McDonald’s pain. On May 7, 2008, she underwent a cervical discectomy with fusion and plating at the C4-5 level.

Unfortunately, her pain was not alleviated by the surgery and she claimed she was so disabled that she could not pick up her grandson or lift anything and she relied upon others for almost all of her activities of daily living.

In McDonald’s lawsuit against the other driver, liability was resolved in her favor and then, on May 4, 2010, a Queens County jury awarded her damages in the total sum of $700,000 including:

  • $200,00 for pain and suffering ($100,000 past – 3 years, $100,000 future – 8 years)
  • $150,000 for past and future loss of earnings
  • $300,000 for past and future medical expenses and
  • $50,000 for past and future household expenses

In post-trial motions, plaintiff argued that the pain and suffering damages verdict was inadequate and should be increased to $950,000 while the defense argued that plaintiff had not met the “serious injury” standard applicable to car accident cases set out in Insurance Law Section 5102(d) and the case should be dismissed. The judge issued an order denying both motions.

On appeal in McDonald v. Kohanfars (2d Dept. 2013), though, the court reversed and dismissed the entire jury award because plaintiff failed to prove that her injuries were caused by this accident, and not by a 1992 accident that also had resulted in cervical fusion surgery (albeit at C5-6, one level below the new injury).

The key on appeal, and the apparent reason the jury rendered a relatively low award in a spinal fusion case, was the fact that Ms. McDonald had in 1996 undergone cervical fusion surgery at C5-6 due to a 1992 injury from heavy lifting.

While plaintiff testified that she hadn’t received any medical treatment between 1997 and 2005 for the injuries sustained in the 1992 accident and was pain free during that entire period, until the new accident, the appeals court ruled that it had to dismiss the case because the surgeon who operated on her in 2008 and testified at trial rendered medical causation opinions that were speculative.

Since plaintiff’s new surgeon only began treating Ms. McDonald in 2007 and hadn’t reviewed her prior treatment records (except for the 1996 operative report), the appellate judges concluded that the doctor had no basis for his conclusion that Ms. McDonald’s current injuries were caused by the 2005 accident as opposed to being pre-existing. The court therefore dismissed the case entirely because plaintiff had failed to prove she had from this accident sustained a “serious injury” and therefore she failed to meet the statutory threshold.

Charles Bacon, a 23 year old mechanical engineer, was driving in Manhattan on August 17, 2007 when he was stopped at a red light and his car was struck in the rear.

A week later, Bacon sought treatment with an orthopedic surgeon for complaints of neck and back pain. MRI reports later showed herniated discs at C4-5, T9-10 and L5-S1.

Bacon sued the other driver, liability was resolved in his favor and a damages only trial was held in October, 2010. The jury heard testimony from treating and expert physicians for both sides (as well as plaintiff’s physical therapist) and then rendered a pain and suffering damages verdict in plaintiff’s favor in the sum of $850,000 ($100,000 past – 3 years, $750,000 future – 10 years).

Apparently, the jurors were impressed with Bacon’s inability to resume competitive mountain biking, his continuing complaints of pain and disability and the testimony of his medical care providers that he had sustained significant losses of range of motion in his neck and back.

Members of Bacon’s Overlook Mountain Bike Team

After trial, the defense sought to have the case dismissed but the trial judge declined; he did, though issue a post-trial order reducing the amount of damages to $450,000.

The defense contended that the case should have been dismissed by the trial judge despite the verdict because:

  • the accident was minor with very little damage to the cars and Bacon didn’t seek medical treatment until a week after the accident
  • plaintiff was out of work for only five days, resumed his usual activities quickly, had not undergone significant medical treatment and would not require surgery
  • there was only one herniated disc (in the back), it pre-dated the accident and was consistent with someone who, like plaintiff, had been an avid mountain biker for the prior nine years

In Bacon v. Bostany (2d Dept. 2013),  the court agreed with the defense in reversing and dismissing the entire case. It did so because the testimony “did not fulfill the objective evidence requirement” under the cases interpreting Insurance Law Section 5102 [see below] since there was no explanation as to what objective tests were used to determine Bacon indeed had significant limitations in the range of motion in his spine.

This case illustrates the difficulty facing plaintiffs with spinal injuries who sue to recover pain and suffering damages in New York courts.

Their problem, apart from their injuries, is that Insurance Law Section 5104 limits their right to recover damages to those cases involving “serious injuries.”

The definition of “serious injury” is set forth in Insurance Law Section 5102 (d), as follows:

  • “Serious injury” means a personal injury which results in death; dismemberment; significant disfigurement; a fracture; loss of a fetus; permanent loss of use of a body organ, member, function or system; permanent consequential limitation of use of a body organ or member; significant limitation of use of a body function or system; or a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment.

Eric Turkewitz has discussed this statute and its ramifications at New York Personal Injury Law Blog: “This significant restriction on bringing suit was a trade-off for the guaranteed health benefits of the No-Fault Law that started in 1973 and was amended in 1977 to the present formulation.” Others discuss this here (Huntington attorney Carol Schlittt) and here (Buffalo attorney Roy Mura).

Turkewitz suggests that the law can work in the counter-productive manner of encouraging people to stay home and not work. He notes that a fractured pinky that heals in a few weeks would qualify as “serious” under the law, but soft tissue back pain that lasts for years might not, especially if objective results don’t turn up on radiological studies or the physician does a poor job documenting the injury and the specifics of the limitations.

Inside Information:

  • As indicated, the so-called “Threshold Law” applies only to car accident cases in New York. Had this verdict been in a construction or slip and fall accident case, the verdict would have been upheld since the grounds relied upon by the appellate court in its decision dismissing the case would’ve been inapplicable.

 

 

 

On September 2, 2009, Yvan Lemoine slipped and fell down an interior stairwell at the premises of Planet Fitness in Astoria.

Yvan, then 28 years old, had been walking from the second to the first floor when wet, just-mopped stairs caused him to slip and fall down 14 stairs.

He had intense pain in his back that radiated upward and an ambulance was called. A neck brace was applied by a paramedic and Yvan was placed on a stretcher and taken to the local hospital emergency room. He was treated and released within a few hours with a prescription for narcotic pain medication and advice to follow up with additional medical help within a day or two.

A lawsuit was commenced later in 2009 and it came to trial in Queens in November 2011. The jury returned a verdict of full liability against the premises owner and then awarded Yvan pain and suffering damages in the sum of $160,000 ($20,000 past – two years, $140,000 future – 35 years).

Despite the defendant’s argument that it was excessive, the verdict has been affirmed in Lemoine v. Steinway Fitness, LLC (2d Dept. 2013).

Here are the injury details (none of which were disclosed in the appellate court decision):

  • herniated disc at C5-C6 in contact with the ventral spinal cord
  • bulging discs at L4-L5 and L5-S1
  • unable to perform pre-accident activities without pain in neck, shoulders and back

Plaintiff’s medical treatment for his injuries consisted only of the emergency room visit and follow-up care with a chiropractor starting two days later and lasting for two years (tapering off to once a month in the second year).

The defense contended that plaintiff’s very active lifestyle after the accident belied his claim that he was seriously injured and in great pain. Prior to the accident, plaintiff had been extremely active – horseback riding, swimming, snowboarding and skiing. Afterwards, he was still able to engage in these activities, however, he testified that when he did so it was always in great pain.

Inside Information :

  • Plaintiff was employed as a chef prior to the accident and was unable to do his usual work for 30 days due to his injuries. In 2012, though, he competed on the reality television series Food Network Star and after 11 weeks, on July 12, 2012, Yvan was named a top three finalist.
  • Evidentiary issues arose regarding the admissibility of photographs and statements on plaintiff’s Facebook page; however, most of the information pre-dated the accident and the trial judge (upheld on appeal) excluded some as prejudicial, cumulative or because the defense failed to disclose its intention to use it. Plaintiff testified credibly (and charismatically) that he was trying to resume his life and activities even though he could do so only with much pain.
  • Plaintiff’s pre-trial settlement demand was $100,000 against no offer. In summation, his attorney asked the jury to award $75,000 for pain and suffering damages but the jury awarded plaintff $85,000 more than requested.

 

On January 13, 2006 at about 1 p.m., Mohammed Kayes, then 44 years old, was walking with his three year old daughter on the sidewalk adjacent to Queens Boulevard near 34th Street in Long Island City. Suddenly, a transit authority truck backed up and pushed over a 40 pound stop sign and pole that then dislodged and struck Kayes on his head and neck. He was knocked to the ground unconscious.

In his ensuing lawsuit against the truck driver and the transit authority, Kayes was awarded summary judgment on the issue of liability and a jury trial on the issue of damages only was held in Queens County resulting in a plaintiff’s verdict in the sum of $2,000,000 for pain and suffering damages ($500,000 past – four years, $1,500,000 future – 30 years).  Defendants appealed arguing that the award was excessive; however, in Kayes v. Liberati (2d Dept. 2013), the jury verdict has been affirmed.

Here are the details of plaintiff’s injuries and treatment:

  •  Large bruise on head with pain in neck, head and back requiring emergency ambulance transport to the local hospital
  • Treated in E.R. with neck brace and pain medication, discharged eight hours later after negative CT scan
  • Medical clinic treatment after two sleepless nights in pain; treated with pain medications and referred to physical therapist where he was treated for nine months 1-2 times per week
  • Continuing neck and left arm pain with radiculopathy, spasms and significant loss of range of motion in neck
  • MRI confirms herniated disc at C5-6 (impinging on nerves) and EMG confirms related left arm nerve damage
  • Epidural steroid injections
  • Surgery July 11, 2007: anterior cervical discectomy and fusion in which the disc between C5 and C6 was removed, a piece of bone was inserted as a stabilizer and a titanium plate was screwed in to lock the two vertebrae together

The surgery helped reduce the pain in plaintiff’s left arm but it did not eliminate his neck pain. Mr. Kayes had continuing headaches, neck pain and burning pain on the left side of his head. Several pain medications and a new course of physical therapy were tried to little avail.

Mr. Kaye testified as to his continuing injuries and disabilities:

  • unremitting pain, both day and night
  • cannot lift more than 10 pounds
  • dizziness from the medications
  • unable to drive a car, play with his child, do household chores or return to work as a busboy

Plaintiff’s surgeon, Alexander de Moura, M.D., testified that his prognosis is “guarded” at best and that within 10 years plaintiff will require additional cervical surgery because of increased stress on the level above the fusion site where the disc was already starting to degenerate more.

At the close of trial, before the jury began its deliberations, the trial judge directed a verdict as to plaintiff’s future medical expenses $831,640) and lost earnings ($605,000) because the defendants had failed to put forth “one iota” of evidence contradictory to that proffered by plaintiff. The appellate court, though, ruled that the judge should not have taken those issues away from the jurors because they could rationally have determined that the awards for  those items of damage could have been less than the amount directed by the judge. Accordingly, a new trial was ordered to be held on the issue of damages for future medical expenses and lost earnings only.

Inside Information:

  • Plaintiff was examined by defense experts in orthopedics and neurology but neither physician was called to testify because their examinations pre-dated plaintiff’s surgery and defense counsel never opted to have follow-up examinations conducted.
  • The only post-surgical examinations for the defense were conducted by an ophthalmologist and a psychologist  which the trial judge declared was “amazing”: “After surgery to fuse the upper levels of the neck, instead of having an [examination] as to the neck … they take a a psychiatric [examination] and opthalmologic [examination] ….”
  • The only witness called by the defense was a radiologist who reviewed the MRI and confirmed that Kayes had sustained disc herniations at C5-6 and acknowledged that the fusion surgery will accelerate the degenerative process in plaintiff’s cervical spine.
  • The claim for plaintiff’s three year old daughter was settled for $8,000 at the start of the trial.