In 1985, Alan Newton was convicted of serious crimes in two separate prosecutions for which he received lengthy consecutive prison terms. He was exonerated of the second conviction (for rape, robbery and assault) and on July 6, 2006 he was released from prison after having served 22 years in jail (10 years on the first conviction – for attempted  rape of a child – and 12 years on the second, wrongful conviction).

After his release, then 45 years old, Newton commenced a federal court  lawsuit against the City of New York and certain of its employees for pain and suffering damages from his wrongful incarceration due to the defendants’ failure to produce the rape kit that eventually exonerated him. He was ultimately awarded $12,000,000 for 12 years (the last 12 of his 22 years of incarceration, since the parties agreed that Newton would have served the full 10 years on the first conviction, which was not overturned).

Newton also sued New York State in the Court of Claims for the damages that were not addressed in the federal court case:

  • four years of past pain and suffering damages (i.e., 22 years minus 12 years compensated for in the federal case minus six years that the parties agreed should be considered as the time served on the first conviction),
  • future (post-release) pain and suffering, including psychological damages,
  • past and future lost earnings, and
  • future medical expenses

The judge in the Court of Claims action awarded plaintiff pain and suffering damages in the sum of $1,200,000 for the four years of wrongful incarceration not covered by the federal suit plus $250,000 for past lost earnings. He declined to make any awards for future lost earnings or medical expenses.

In Newton v. State of New York  (1st Dept. 2018),  the Court of Claims judge’s awards were affirmed, $104,000 was awarded for future medical expenses and the case was remanded for a determination on the issue of plaintiff’s post-incarceration pain and suffering. As set forth in the appellate court decision, there was sufficient evidence that Mr. Newton was entitled to post-incarceration and future psychological damages for injuries attributable to his extended incarceration on the wrongful conviction beyond the six-year term he had served on the other unrelated conviction.

Plaintiff’s claim for post-incarceration pain and suffering damages was based upon his testimony that he had been suffering from chronic depression since his release from prison. His psychiatrist testified that Newton met the criteria for dysthymic disorder, otherwise known as persistent depressive disorder, involving significant, chronic depression that it is likely to continue into the future and that it resulted from his lengthy incarceration. The $104,000 award for future medical expenses was based directly upon the psychiatrist’s testimony that plaintiff needs five years of weekly psychotherapy to address his chronic depressive disorder. The State did not present any expert testimony to rebut plaintiff’s future pain and suffering damages claim.

Inside Information:

  • In the federal court lawsuit, the jury awarded pain and suffering damages in the sum of $18,000,000 but that was determined to be excessive and reduced to $12,000,000.
  • After his release from prison, Newton was offered a scholarship at City University of New York and graduated with a bachelor’s degree in business administration.

Denise Rivera began working for United Parcel Service, Inc. (UPS) in 2001 at a facility in the Bronx. She was promoted several times, eventually to a supervisor position in 2004. Shortly thereafter, a fellow supervisor began a  campaign of sexual harassment which ended with her termination from UPS on July 10, 2007.

ups-office

Ms. Ramos, then 40 years old and earning about $75,000 annually, sued UPS for damages for sexual harassment and retaliation. At the conclusion of a seven week trial in March 2014, the judge charged the jury and the Manhattan jurors then found in plaintiff’s favor on both of her claims and awarded emotional distress pain and suffering damages in the sum of $300,000 (all past – six and a half years) as well as loss of earnings in the sum of $730,000 ($420,000 past, $310,000 future) and punitive damages in the sum of $300,000.

The trial judge issued a post-trial decision ordering a reduction in the loss of earnings awards to $607,750 (discussed below) to which plaintiff consented.

In Rivera v. United Parcel Service, Inc. (1st Dept. 2017), the appellate court affirmed the emotional distress and punitive damages awards as well as the reduced lost earnings awards.

Plaintiff’s problems at UPS began after she became separated from her husband when her fellow supervisor started making advances towards her. She testified that he told her he was available and she should be with him. He called her at all hours but she told him she was not interested in him. Then, she said, he tuned on her started making vulgar and obscene comments to her and was abusive towards her at work. The day after she formally complained, she was assigned to another location, an undesirable one entailing additional work. Then, rumors of her sexual promiscuity with other UPS drivers were spread throughout the workplace. Again she formally complained and again she was promptly transferred to other locations and then fired.

UPS claimed  that the supervisor’s conduct was neither unwanted nor unwelcome and that this case was not about retaliation but instead about plaintiff’s “lies and deception.” Further, defendant claimed, plaintiff falsified records and improperly authorized a premises security breach (allowing a driver to avoid passing through the metal detector at day’s end) and these were the justifiable reasons she was fired.

Defendant argued that $300,000 for emotional distress damages was excessive because, while plaintiff began counseling at the end of 2007 in connection with her failed marriage, it was not until September 2009 that she went for counseling which she attributed to her experiences at UPS (and the counseling was intermittent and lasted only a few months). Defendant urged that this aspect of the award should be reduced to no more than $50,000.

There was no testimony from any health care professional or therapist; instead, plaintiff relied upon her own testimony and records which she argued supported the emotional distress award.

The jury’s past loss of earnings award was reduced by $112,250 because (a)  the jury failed to take into account the amounts which plaintiff earned at several jobs after her termination and (b) plaintiff’s decision (after wrongful termination from one of those jobs) to forego comparable employment constituted a failure mitigate her damages. The future loss of earnings award was reduced by $10,000; plaintiff’s attorney only asked for $300,000 based upon a claimed loss of $30,000 per year for 10 years.

The jury determined that UPS, through its employees, acted with malice and reckless indifference to plaintiff’s rights and to the risk that its conduct might violate the law, its conduct was reprehensible and that plaintiff was thus entitled to an award of punitive damages. After the verdict was rendered, plaintiff elicited the testimony from a UPS finance director confirming public filings showing that in 2013 UPS had net income of $4,372,000,000. The attorneys then made closing arguments as to the punitive damages claim and the judge charged the jury as to the law on punitive damages. The appellate court affirmed the $300,000 punitive damages award after noting the defendant’s “substantial income” and comparing the award with those in similar cases.

Inside Information:

  • Prior to trial, plaintiff successfully moved to preclude evidence of a consensual sexual relationship she had engaged in with a co-employee unrelated to her claims in the lawsuit. The judge ruled that private sexual relationships are essentially irrelevant in sexual harassment cases and that a plaintiff’s private sexual behavior does not change his or her expectations or entitlement to a workplace free of sexual harassment.

In June 2011, high school student Bridgette Belton landed a job as a food server at Popeye’s Chicken Restaurant at 145th Street and Frederick Douglass Boulevard in Harlem.

Popeyes Restaurant

Each day Bridgette would walk from school to the restaurant where she’d change out of her school uniform into a work uniform. A disgusting pattern of sexual harassment began almost immediately,  two or three times a  week, when her boss, the 30 year old married manager Ivan Pachecho, would touch her breasts and vagina while she changed uniforms in a locker room at the restaurant. He also inserted his hands into her pants, exposed himself to her and offered money for sexual intercourse (all of which she rebuffed and refused).

After six months on the job (20 hours a week during the school year and 40 hours a week during the summer), Bridgette accumulated about $6,000 much of which she contributed to her financially struggling father and some of which she saved for herself. She could not withstand the harassment any longer and quit the job in December 2011.

In the ensuing lawsuit against her employers, on December 11, 2014, a Bronx County jury awarded Ms. Belton $300,000 for emotional distress damages plus $20,000 for compensatory damages for constructive discharge.

Defendants’ post-trial motion to set aside the verdict was granted in part – the judge reduced the emotional distress damage award to $100,000.

On appeal, though, in Belton v. Lal Chicken, Inc. (1st Dept. 2016), the $300,000 award was reinstated.

Here are the injury details:

  • forced to leave high school in the middle of her senior year after her school work suffered
  • withdrew from her friends, school-mates and family and no longer wanted to be around people during the six month period of the harassment and thereafter
  • episodes of uncontrollable crying
  • lowered self-esteem, confidence and motivation
  • gained 85 pounds to make her less attractive to her boss

In September 2012, Bridgette enrolled at the Borough of Manhattan Community College where she discussed  the facts of her sexual harassment (for the first time with anyone other than her lawyer) with Precious Sellars-Mulhern, Ph.D., a guidance counselor who is a clinical psychologist. Dr. Sellars-Mulhern testified at trial that plaintiff suffers from post-traumatic stress syndrome (“PTSD”).

Inside Information:

  • The jurors deliberated for only 70 minutes before returning their verdict.
  • On her last day at work, plaintiff surreptitiously made a videotape showing her boss touching her breasts and vagina and tampering with her zipper while she was trying to push him away. The tape was admitted in evidence and shown to the jury.
  • Plaintiff’s attorneys were awarded legal fees in the sum of $64,000 pursuant to Section 8-502(g) of the Administrative Code of the City of New York.

 OTHER CASES:

  1. Douayi v. Carissimi (1st Dept. 2016) – emotional distress damages in the sum of $400,000 ($200,000 past – six years, $200,000 future – 50 years) for a 25 year old woman whose baby was stillborn due to medical malpractice. Only liability was challenged on appeal.
  2. Silipo v. Wiley (3rd Dept. 2016) –  psychological damages in the sum of $64,000 affirmed for an employee whose boss, despite her protests, grabbed her, tried to engage her in sexual relations and ultimately fired her. She sustained debilitating psychological symptoms for several months and developed post-traumatic stress and adjustment disorders with anxiety.

On May 30, 2008, at about 8:30 p.m., then 49 year old William Cardoza was drinking beer outside in front of the Bronx building where he lived. New York City Police Department (“NYPD”) officers assigned to address quality of life issues, such as public drinking, observed Mr. Cardoza with an open container. In the next two minutes, the officers  approached him and asked for identification whereupon the parties confronted one another and Mr. Cardozo was placed under arrest.

While the parties disputed whether Mr. Cardoza refused to provide identification or simply didn’t understand the officers due to a language barrier, it was undisputed that as he was taken into custody, Mr. Cardoza was pepper-sprayed and hit in his right hand repeatedly by an officer’s baton. A videotape captured the entire incident.

cameras

In his ensuing case alleging excessive force, false arrest and resulting injuries, on April 6, 2012, after 12 days of trial, a Bronx County jury awarded Mr. Cardoza pain and suffering damages in the sum of $2,500,000 ($500,000 past – four years, $2,000,000 future – 15 years) as well as punitive damages in the sum of $1,500,000 ($750,000 against each of the two involved officers).

The trial judge ordered a reduction in the pain and suffering damages to $350,000 ($200,000 past, $150,000 future) and vacated the awards for punitive damages.

In Cardoza v. City of New York  (1st Dept. 2016), the appellate court reinstated the verdict for pain and suffering damages to the extent of $1,650,000 ($400,000 past, $1,250,000 future) and it reinstated $150,000 of the punitive damages awards ($75,000 against each officer).

As set forth in the court’s lengthy and well-written decision, plaintiff sustained right (dominant) hand and finger fractures and post-traumatic stress and major depressive disorders as a result of the incident.

hand5

Here are the injury details:

  • displaced, comminuted open fractures to second metacarpal bone of right hand
  • open reduction internal fixation surgery to repair the fractures with K-wires
  • six day hospitalization, handcuffed and shackled to bed until discharged
  • surgical removal of wires after 10 weeks
  • physical therapy 2-3 months
  • development of scar tissue with resultant permanent loss of range of motion and diminished grip strength, manual and finger dexterity, all resulting in an inability to perform many work-related activities such as holding tools, painting and making apartment repairs and difficulty with activities of daily living such as getting dressed
  • psychiatric/emotional injuries including feeling isolated, useless, helpless and depressed, inability to sleep, recurring nightmares, fear of seeing policemen, and suicidal ideations, all of which plaintiff’s treating psychiatrist opined left him with permanent post-traumatic stress and major depressive disorders requiring four years of psychiatric treatment to the date of trial, 15 more years of treatment in the future and anti-depressant and sedative medications including Lexapro, Ambien and Trazodone

adult_hand_fx_metacarpal_collage

Inside Information:

  • Hugo Morales, M.D., plaintiff’s treating and testifying psychiatrist, is the only Spanish speaking psychiatrist in the Bronx.
  • Plaintiff had been a building superintendent for 14 years and at the time of his arrest was working in that capacity part-time. He was unable to return to work until about four months later (but only in a limited capacity); however, he did not assert a lost earnings claim.
  • Defendant’s settlement offer of $100,000 was rejected and plaintiff’s counsel asked the jurors to award pain and suffering damages of $1,600,000 plus punitive damages of $1,000,000 against each of the two police officers.
  • Plaintiff’s attorney, Seth A. Harris, stated that this case represented one of the most compelling excessive force cases he’s seen in 25 years. He also said that both police officers will be indemnified for the punitive damages awards and will not have to pay out of pocket.

 

In 2005, Erin Stolarski lived in a Port Chester apartment with her boyfriend Donald DeSimone, a police officer. In October, though, Donald told Erin that he wanted to break up and he asked her to leave the apartment. Despondent over the breakup, Erin (23 years old) attempted suicide on October 15, 2005 by ingesting Oxycodone and other pain relieving prescription medications that belonged to Donald.

She was rushed by ambulance to Greenwich Hospital where she was admitted for two days. Upon discharge, Erin moved back home with her parents and was referred to Family Services of Westchester (“FSW”), a non-profit agency, for outpatient social work and psychological services. She met with a clinical social worker at FSW twice – on October 19th and 26th.

On October 28, 2005, though, Erin committed suicide by shooting herself in the head with her ex-boyfriend’s gun that she obtained by entering DeSimone’s apartment with an old set of keys.

Erin’s parents sued DeSimone claiming that he was negligent in failing to properly secure his handgun when he knew or should have known of Erin’s depressed and suicidal state.

They also sued FSW alleging a failure to properly diagnose Erin as suicidal and refer her to a psychiatrist for treatment that could have avoided her suicide.

The claims against DeSimone were dismissed two years ago (Stolarski v. DeSimone – 2d Dept. 2011); however the case against FSW was allowed to continue because (as set forth in the lower court’s decision in 2009) there was an issue of fact as to whether Erin was referred to a psychiatrist and, given her history, whether another suicide attempt was reasonably foreseeable.

On the eve of trial, FSW again sought dismissal, this time claiming that even if it were determined that FSW was negligent, the pre-death conscious pain and suffering damages sought in this case would not be recoverable under New York law (and that there was insufficient evidence to support a claim for pecuniary, or economic, loss).

The lower court granted the motion, to the extent of dismissing the claim for pre-death pain and suffering damages because Erin’s depression already existed when she sought treatment from FSW and there was no evidence that FSW caused it.

On appeal, though, in Stolarski v. DeSimone (2d Dept. 2013), the pain and suffering claim has now been reinstated but limited to 10 days only – October 19, 2005 (when FSW first treated Erin) to October 28, 2005 (the date of Erin’s death).

The appellate court stated:

“… the fact that the decedent’s depression was pre-existing does not preclude the plaintiff from attempting to prove her entitlement to damages on the theory that the decedent’s condition was exacerbated by Family Services’ alleged failure to provide proper treatment.” [emphasis added]

Plaintiff argued, successfully, that there may be provable pain and suffering claims for:

  1. nine or ten days of of continued psychological pain, and
  2. Erin’s traumatic experience of lifting a gun to her head with awareness of her impending death

The appellate court agreed but, as noted above, limited the claim to those damages that were exacerbated, or made worse by, any negligence of FSW that plaintiff might prove at trial.

Inside Information:

  • The attorneys in this case argued repeatedly resulting in a court appointed referee to supervise depositions.
  • It was only a day before trial, after the jury had already been selected, that FSW made its motion attacking the legal basis for plaintiff’s damages claims.
  • The pecuniary damages claim does not appear to be significant. In opposing FSW’s motion to dismiss the pain and suffering claim, plaintiff’s attorney stated that if that claim were dismissed, the case would simply end because plaintiff structured her entire damages theory around conscious pain and suffering.

 

Carlos Pacheco was 23 years old and had a five year history of seizure disorders. Typically, an ambulance would be summoned to his apartment in the Bronx and he’d be taken to the hospital, treated and released. On September 30, 2006, Carlos was having a seizure and his girlfriend called 911.

After police and ambulance personnel arrived, Carlos became combative and was restrained and then he was subdued with handcuffs, a chair restraint and stunned with a Taser  by a police officer.

This latest seizure landed Carlos in the hospital for two days for observation and testing. The Taser incident landed the City of New York and several of its police officers in court with a lawsuit by Pacheco claiming that the police used excessive force (he claimed he was tasered at least six times while the defense claimed it was only two) and that as a result he suffers from post-traumatic stress disorder.

The case came on for trial in the Bronx on September 14, 2010 and resulted in a verdict in plaintiff’s favor finding that excessive force had been used and that plaintiff was entitled to pain and suffering damages in the sum of $1,042,499  ($409,166 past – four years, $633,333 future – 48 years). In addition, the jury awarded punitive damages in the sum of $1,000,000. Thus, the total jury award was $2,042,499.

The defendants’ motion seeking to set aside the verdict and/or reduce the damages was denied in a post-trial decision by the Hon. Geoffrey D. Wright dated May 7, 2012.

Thereafter, defendants appealed and now, in Pacheco v. City of New York (1st Dept. 2013),  the entire verdict has been set aside, the judgment reversed and the complaint dismissed because, the court held, the evidence was insufficient to permit the jury to find that excessive force had been used.

The appellate court did not reach or discuss the issue of whether the damages awarded by the jury were excessive. The parties, though, argued that point in connection with the post-trial motion. It appears that had the verdict been upheld as to liability, the pain and suffering damages would have been reduced because of the paucity of medical treatment and proof.

Here are the injury details:

  • post-traumatic stress disorder or PTSD (an expert neurologist who examined plaintiff three years later testified that plaintiff  suffers from nightmares, flashbacks, sleep disorder, depression,  mood and memory problems, all of which are permanent and progressive)
  • burn marks and pain from the Taser on chest, abdomen and back
  • wrists and ankles pain from the use of restraints

The defense noted that apart from the initial hospital admission of two days when plaintiff was evaluated as to his seizures and then an emergency room visit a few days later when plaintiff complained of  some ankle and leg pain, Pacheco never once over the ensuing years sought any medical or psychological treatment at all for his injuries. Furthermore, the only one who ever made a diagnosis of PTSD was plaintiff’s expert (the defense did not call upon a medical expert of its own) who examined plaintiff once for 45 minutes three years after the incident. Finally, any burn marks or pain, the defense claimed, were either minimal and/or had healed quickly.

To recover punitive damages, a plaintiff in a case alleging excessive force by a police officer must prove conduct that was wanton, reckless or malicious.  Even assuming plaintiff here could have (or did) sustain that burden of proof, it does not appear that as much as $1,000,000 would have been upheld had the liability verdict been affirmed. In Ferguson v. City of New York  (1st Dept. 2010), for example, a punitive damages award of $2,700,000 was sustained but there an officer acted in complete disregard of police procedure and fired his gun into the back of a suspect’s head killing him instantly. The amount of punitive damages must be reasonably related to the harm done and the flagrancy of the conduct and therefore Ferguson v. City of New York is distinguishable from Papa v. City of New York (2d Dept. 1993) in which a punitive damage award of $1,250,000 was reduced to $500,000 because in the Papa case (as in Pacheco v. City of New York), there was no one shot and killed.

Inside Information:

  • In her opening statement, defense counsel argued that plaintiff  “was looking for a pay day as a result of officers trying to help him” and he was entitled to nothing at all. In his summation, plaintiff’s counsel said that Mr. Pacheco’s life was ruined and he asked the jury to award $3,500,000 in pain and suffering damages plus $1,000,000 in punitive damages.
  • Lab tests at the hospital immediately following the Taser incident indicated that plaintiff had an inadequate amount of previously prescribed anti-seizure medication Dilantin in his system and his expert admitted that that’s why he seized.
  • Plaintiff never told his expert about two important matters:  a year and a half after the incident he’d been kicked out of his house and had to leave all of his belongings behind and six months later he broke up with his long time live-in girlfriend. The expert admitted that he “would have liked to have known that” information.
  • At a settlement conference in court seven months before trial, the city offered $100,000 but plaintiff would not take less than $125,000 (and thereafter increased his settlement demand to $600,000).

 

 

Following incapacitating panic attacks in 2000, Kristin Dupree, then 29 years old, treated with family practitioner James F. Giugliano, M.D. in Southampton, New York over a period of 17 months. The doctor’s “treatment” included a nine month long sexual relationship that his patient later claimed caused her severe emotional distress.

A malpractice lawsuit against the doctor was filed in 2004. Plaintiff testified at trial that she had been unable to control herself and refrain from a sexual relationship with her doctor. She produced expert testimony from a psychiatrist who concluded that plaintiff had experienced eroticized transference – a medical phenomenon in which a patient experiences a near psychotic attraction to her treating physician.

In November 2008 a verdict was rendered in plaintiff’s favor in the sum of $416,000 ($200,000 for mental distress and $134,00 for economic damages, reduced by 25% to $250,000 for plaintiff’s comparative fault) plus $166,000 for punitive damages.

The verdict was affirmed on appeal in 2011 and we discussed the case and the initial appeal here.

Now, New York’s highest court has dismissed the punitive damages award in Dupree v. Giugliano (Court of Appeals 2012).

The court clarified the standard for an award of punitive damages in New York noting  that a defendant must manifest evil or malicious conduct beyond any breach of professional duty. There must be aggravation or outrage, such as spite or malice, or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called willful or wanton.

In this case, the high court concluded, punitive damages were not available because there was no evidence that the doctor willfully caused plaintiff’s transference or harm.

Inside Information:

  • In arguing that the doctor’s conduct was not aggravated beyond mere negligence, the defense noted that he was having his own domestic problems at home, was “caught up in the moment” and was “obviously smitten by the beauty and charm of the plaintiff and her seductive conduct.”
  • Plaintiff argued that the defendant’s behavior clearly showed his conscious disregard of plaintiff’s interests and was like “tossing a match into a dry forest” because she could have been quickly cured of her panic attacks but instead was sexually exploited and will as a result suffer many years of severe depression.

 

 

On January 27, 2003, at about 9:45 a.m., Lucille Turuseta was walking into the rear entrance of an office building at 175 Main Street in White Plains where she worked as the office manager for a court reporting firm. As she opened the door, Ms. Turuseta’s right foot became caught in broken cement causing her to fall to the ground.

She fell and sustained a fractured coccyx and a herniated disc at L4-5.

Fractured coccyx:

Although she tried to return to work on several occasions, Ms. Turuseta claimed she was unable to do so due to unremitting pain. And, within four months, she was determined to have sustained a major depressive episode.

Then, the Social Security Administration determined that, as of August 2003, Ms. Turuseta had become disabled (i.e., unable to do any substantial gainful activity because of her physical and/or mental impairments).

In January 2008, a Westchester County jury determined that the building owner and manager were negligent and fully responsible for plaintiff’s injuries because broken concrete near the door saddle was a dangerous defect that they knew of several months earlier and could have repaired for $200.

The same jury then awarded Ms. Tursueta $80,000 solely for her future medical expenses while awarding her nothing at all for her pain and suffering.

The trial judge agreed with plaintiff  that the verdict awarding $80,000 appeared to be an impermissible compromise – how could a jury award her future medical expenses (the figure corresponded with the amount her doctors testified would be needed for future coccyx and spinal surgeries) but nothing for pain and suffering? The $80,000 verdict was set aside and a new trial ordered on the issue of damages.

Ms. Turuseta testified that the unremitting pain in her back and coccyx was not relieved with extensive pain medication, trigger point injections or facet block injections. She hobbled to the stand with a cane and said she was in substantial pain even while sitting on a pillow and using pain relief medicine.

Her doctors testified that she had substantial limitations bending and lifting and that she could not perform even light jobs. SSEP tests demonstrated irritation of the nerve roots in her legs and Ms. Tursueta was diagnosed with lumbar radiculopathy, a chronic pain condition characterized by leg pain with tingling, numbness or weakness that travels from the low back through the buttock and down the large sciatic nerve in the back of the leg.

On July 2, 2009, the second jury awarded plaintiff pain and suffering damages in the sum of $2,796,096 ($576,867 past – 6 years, $2,219,229 future – 28 years).

Now, in Turuseta v. Wyassup-Laurel Glen Corp. (2d Dept. 2012), the appellate court has agreed with the defendants that the pain and suffering award was excessive and ruled that it should be reduced to $1,150,000 ($400,000 past, $750,000 future). The appellate court also upheld the loss of earnings award in the sum of about $840,000 and future household expenses in the sum of $90,000.

Although reduced by more than $1,600,000, the resulting pain and suffering award of $1,150,000 nonetheless stands as a very significant sum upheld out of the usually conservative Westchester County for orthopedic injuries that hadn’t required surgery as of the trial date.

Inside Information:

  • In seeking to set aside the first verdict, plaintiff’s counsel proposed an amount of $1,000,000 for total pain and suffering – $900,000 for his client’s physical injuries plus $100,000 for her depression. In his summation at the second trial, counsel asked the jury to award $1,650,000 for pain and suffering (without suggesting a division between her physical and psychological injuries).
  • At the time of her accident, Ms. Turuseta’s employer was her best friend and testified on her behalf. And that woman’s husband was Ms. Turuseta’s attorney in this case. In closing arguments, her attorney stated: “I know this lady. I like this lady. She was my friend. She is my friend.”
  • X-rays on the date of the accident indicated there was no fracture of the coccyx; it wasn’t until a few days later that another x-ray clearly identified the fracture.

 

Kristin Dupree had been a beautiful fashion model who married at the age of 23 and settled in Southampton, New York. When she was 29, Kristin underwent an incapacitating panic attack that led her to the office of James E. Giugliano, M.D., a local family practitioner. After 17 months of anti-depressant drugs and twice a week  “talk therapy,” the married doctor and his patient began a nine month long sexual relationship.

Then:

Now:

Claiming malpractice and that the doctor ruined her marriage and caused her to suffer from emotional distress, Dupree sued Dr. Giugliano and in November 2008 a Suffolk County jury found that there was indeed malpractice and awarded her damages as follows:

  • for mental distress – $200,000 ($150,000 past – 7 years, $50,000 future – 5 years)
  • economic damages – $134,000 (loss of past financial support)
  • punitive damages – $166,000

The jury found that plaintiff was 25% at fault so her awards for mental distress and economic losses were reduced proportionately.

Both the liability verdict and the damages amounts have now been affirmed on appeal in Dupree v. Giugliano (2d Dept. 2011).

Plaintiff claimed that she was a severely depressed patient who was compelled by the medical phenomenon known as “eroticized transference” to participate in sexual relations with her doctor.

The defense unsuccessfully argued that the sexual relationship was consensual – indeed provoked by the plaintiff – and in jury selection counsel suggested that this case was like the movie “Fatal Attraction” (in which a married man’s one night stand comes back to haunt him when that lover stalks him and his family). Clearly, that suggestion did not sit well with the jurors.

Plaintiff proved that her anxiety and depression increased and became chronic because of the defendant’s sexual exploitation. Instead of a quick cure, her expert psychiatrist opined that plaintiff would need another five years to get back to herself.

The jurors heard testimony as to plaintiff’s mental distress damages:

  • tremendous guilt over the sexual relationship
  • marital discord and hostility leading to a bitter divorce
  • loss of full custody of her 11 year old daughter
  • loss of friendships and embarrassment

Plaintiff also claimed as damages:

  • $155,000 for legal fees related to her divorce (jury awarded -0-)
  • $435,000 for loss of financial support from her husband – an excavation and landscaping contractor (jury awarded $134,000)

Inside Information:

On July 1, 1997, a 24 year old woman, pregnant at seven months with her first baby, went into precipitous labor at home. Lucia Ferreira and her husband had been excited about the birth of their first child (a girl) but tragedy was about to unfold – the baby was in a footling breech position and her head became stuck in the birth canal.

With no oxygen or blood able to get through the umbilical cord, the baby asphyxiated and was pronounced dead on arrival at the hospital.

A lawsuit followed – Ferreira v. Wyckoff Heights Medical Center (Civil Court, Kings County, Index # 1449/02) – in which it was claimed that plaintiff had been improperly evaluated and treated at the Brooklyn hospital when she’d presented there several times complaining of abdominal pain (due to premature labor) the week before the stillbirth (including three times the day before without being admitted).

Wyckoff Heights Medical Center:

After a 10 day trial in November 2006, the jury found that the hospital had committed malpractice in sending Ms. Ferreira home just 24 hours before her baby’s death. Plaintiff argued that the breech position should have been detected and she should have been admitted and treated for premature labor and/or a Cesarean section could have been performed to deliver a healthy baby. The jury agreed and she was awarded $1,000,000 for her emotional distress injuries (past – 8 years, future – zero).

The defendant appealed claiming that the pain and suffering award was excessive. Now, in Ferreira v. Wyckoff Heights Medical Center (2d Dept. 2011), the appellate judges upheld the liability verdict against the defendant and sustained the propriety of $1,000,000 for pain and suffering. As to the verdict amount, they merely stated that the award "does not deviate from what would be reasonable compensation."

We have uncovered the details as to plaintiff’s pain and suffering claim:

  • pathological bereavement
  • post-traumatic stress disorder
  • significant depression

The defense argued that the award was improperly fueled by compassion and sympathy and was excessive because plaintiff:

  • never sought any mental health treatment after only a single counseling session a month after the incident, and
  • recovered, as evidenced by her successful return to full-time work in a collection agency in 2000 and the birth of a healthy child in that year

Plaintiff countered, though, with the fact that she treated only once because she could not afford counseling fees and because she found it too painful to talk about and thereby relive the horrible event.

She also presented expert testimony from a psychiatrist who stated that his diagnosis of pathological bereavement was based on his examination of Ms. Ferreira, his review of all of the medical records and on Ms. Ferreira’s eight years of carrying around and displaying two photographs of her deceased daughter taken after resuscitation efforts failed. He recommended ongoing psychiatric treatment.

There was no case law cited in the appellate court decision as to prior similar injuries and that’s because, in stillborn cases, until 2004, damages for a mother’s emotional distress  were not recoverable without an independent physical injury to the mother. The Court of Appeals, in Broadnax v. Gonzalez (2004), changed the law to allow emotional distress damages without physical injury to the mother.

The $1,000,000 emotional distress damages award that was sustained in Ferreira v. Wyckoff Heights Medical Center is significant for two reasons:

  1. it’s the first time this New York appeals court was asked to review a pain and suffering award made to a plaintiff for emotional injuries sustained as a result of a stillbirth; and,
  2. the court declined to reduce a substantial verdict in a case in which there was a paucity of objective proof of the injuries

Inside Information:

  • Since Ms. Ferreira’s case was brought before the law changed, her initial claim was for wrongful death damages (e.g., the baby’s short-lived physical pain) on the theory that her baby was born alive. When she changed her theory – arguing instead that her baby was stillborn – the defense objected but to no avail.
  • In 2005, one of defendant’s in-house lawyers penned a provocative article entitled, "The Medical Malpractice Crisis, Again." And one of defendant’s arguments on appeal was that to permit the $1,000,000 pain and suffering award for this newly allowed emotional distress damages claim would have a materially detrimental impact on New York’s health care crisis. The appellate court judges did not discuss these issues.
  • The jurors found that Ms. Ferreira was negligent because she failed to seek further medical treatment after her return home from the hospital about 24 hours before the stillbirth but that they then found that her negligence was not a substantial factor in bringing about the premature delivery and death of her baby. The defense argued (unsuccessfully) that these two findings are inconsistent and require reversal of the verdict. The appellate judges rejected this argument because had plaintiff been admitted to the hospital the day before (and not sent home) the premature breech birth of the baby without medical intervention could have been prevented.
  • Both sides were represented by appellate attorneys widely regarded as among the best in New York – Arnold E. DiJoseph for the plaintiff and Mauro Lilling Naparty LLP (formerly known as Mauro, Goldberg & Lilling) for the defendant.